The mission of DOE's Office of Environment, Health, Safety and Security (EHSS) is to provide organizational leadership and strategic approaches for protecting DOE's workers, the public, the environment and national security assets. This objective is accomplished through developing organizational policies and standards and providing guidance on their implementation; sharing operating experience, lessons learned, and best practices; and providing assistance and supporting services to line management with the goal of mission success as DOE's environment, health, safety and security advocate.

On February 10, 2022, DOE updated its organizational structure which changed certain titles and reporting duties within EHSS. Certain of the EHSS's functions are subject to regulations in title 10 of the Code of Federal Regulations (CFR). As a result of the changes, title 10 of the CFR contains references to DOE organizational names and positions that are no longer current. This final rule amends certain regulations in title 10 of the CFR to reflect new organizational names and titles.

Specifically, DOE has changed the title of the Associate Under Secretary for Environment, Health, Safety and Security to the Director of the Office of Environment, Health, Safety and Security and amendments have been made to 10 CFR parts 602, 710, 712, 835, 850, 851, 1016, 1045, and 1046 to reflect that change. In 10 CFR part 725, the reference to “Chief Health, Safety and Security Officer” has been changed to the “Director, Office of Environment, Health, Safety and Security”. The Director of EHSS now reports directly to the Deputy Secretary of Energy rather than a DOE Under Secretary. In addition, the reference in 10 CFR part 1017 to the “Office of Health, Safety and Security” has been changed to the “Office of Environment, Health, Safety and Security”. This final rule also updates the routing symbols of DOE's Office of Environment, Health, Safety and Security from AU to EHSS.

References in 10 CFR part 710 to the Deputy Associate Under Secretary for Environment, Health, Safety and Security have been changed to the Deputy Director for Security, Office of Environment, Health, Safety and Security. A previous reorganization in the Office of Environment, Health, Safety and Security divided the position of the Deputy Associate Under Secretary for Environment, Health, Safety and Security into the Deputy Associate Under Secretary for Environment, Health and Safety and the Deputy Associate Under Secretary for Security. Accordingly, in recognition of that reorganization and the change in titles, references to the Deputy Associate Under Secretary for Environment, Health, Safety and Security in 10 CFR part 710 are being changed to the Deputy Director for Security, Office of Environment, Health, Safety and Security.

Changes are also being made in 10 CFR part 851 to avoid confusion between references to the Director of the Office of Environment, Health, Safety and Security and the Director of the Office of Enforcement, who has been, until now, referred to as “Director” in 10 CFR part 851.

In addition, in 10 CFR part 851 DOE is deleting references to subpart G of 10 CFR part 1003, Office of Hearings and Appeals Procedural Regulations, because part 1003 has been amended and the references to subpart G are no longer correct.

This final rule also updates the titles of two of its Under Secretaries. In 10 CFR part 851, a reference to the “Under Secretary for Science and Energy, or Under Secretary for Management and Performance” is being changed to the “Under Secretary for Science and Innovation, or Under Secretary for Infrastructure”. In 10 CFR part 1046, a reference to the “Under Secretary for Science” is being changed to the “Under Secretary for Science and Innovation”.

None of the regulatory amendments in this notice of final rule alter substantive rights or obligations under current law.

This regulatory action has been determined not to be significant for purposes of Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (October 4, 1993). As a result, the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget (OMB) did not review this rule.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) requires preparation of an initial regulatory flexibility analysis for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. As required by Executive Order 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” 67 FR 53461 (August 16, 2002), DOE published procedures and policies to ensure that the potential impacts of its draft rules on small entities are properly considered during the rulemaking process (68 FR 7990, February 19, 2003), and has made them available on the Office of General Counsel's website: www.energy.gov/gc/office-general-counsel. Because there was no requirement to first publish this regulation for comment, as discussed above, no analysis is required for purposes of the Regulatory Flexibility Act.

This rule does not impose a collection of information requirement subject to review and approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ).

Pursuant to the National Environmental Policy Act of 1969 (NEPA), DOE has analyzed this proposed action in accordance with NEPA and DOE's NEPA implementing regulations (10 CFR part 1021). DOE's regulations include a categorical exclusion (CX) for rulemakings interpreting or amending an existing rule or regulation that does not change the environmental effect of the rule or regulation being amended. See 10 CFR part 1021, subpart D, appendix A5. DOE has determined that this rule is covered under the CX found in DOE's NEPA regulations at paragraph A.5 of appendix A to subpart D, 10 CFR part 1021, because it amends existing regulations without changing the environmental effect of the rules and meets the requirements for the application of a CX. See 10 CFR 1021.410. Therefore, DOE has determined that this final rule is not a major Federal action significantly affecting the quality of the human environment within the meaning of NEPA, and does not require an Environmental Assessment or an Environmental Impact Statement.

With respect to the review of existing regulations and the promulgation of new regulations, Section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (February 7, 1996), imposes on Federal agencies the general duty to adhere to the following requirements: (1) eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; (3) provide a clear legal standard for affected conduct rather than a general standard; and (4) promote simplification and burden reduction. Section 3(b) of Executive Order 12988 specifically requires that executive agencies make every reasonable effort to ensure that the regulation: (1) clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; (6) specifies whether administrative proceedings are to be required before parties may file suit in court and, if so, describes those proceedings and requires the exhaustion of administrative remedies; and (7) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this final rule meets the relevant standards of Executive Order 12988.

Executive Order 13132, “Federalism” (64 FR 43255 (August 4, 1999)), imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. The Executive order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735. DOE has examined this final rule and has determined that it would not preempt State law and 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. No further action is required by Executive Order 13132.

Under Executive Order 13175 (65 FR 67249, November 6, 2000) on “Consultation and Coordination with Indian Tribal Governments,” DOE may not issue a discretionary rule that has “Tribal” implications and imposes substantial direct compliance costs on Indian Tribal governments. DOE has determined that the final rule will not have such effects and concluded that Executive Order 13175 does not apply to this final rule.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4)) requires each Federal agency to prepare a written assessment of the effects of any Federal mandate in a proposed or final agency regulation that may result in the expenditure by State, Tribal, or local governments, on the aggregate, or by the private sector, of $100 million in any one year (adjusted annually for inflation). For a regulatory action likely to result in a rule that may cause this expenditure, section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy (2 U.S.C. 1532(a), (b)). The Act also requires a Federal agency to develop an effective process to permit timely input by elected officials of State, Tribal, or local governments on a proposed “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity to provide timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect small governments. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. (62 FR 12820) (This policy is also available at: www.energy.gov/gc/office-general-counsel under “Guidance & Opinions” (Rulemaking)). DOE examined this final rule according to UMRA and its statement of policy and has determined that the rule contains neither an intergovernmental mandate, nor a mandate that may result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year. Accordingly, no further assessment or analysis is required under UMRA.

Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to the OMB a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that: (1)(i) is a significant regulatory action under Executive Order 12866, or any successor order; and (ii) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (2) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. DOE has concluded that this regulatory action will not have a significant adverse effect on the supply, distribution, or use of energy and is therefore not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects.

Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277), requires Federal agencies to issue a Family Policymaking Assessment for any proposed rule that may affect family well-being. The final rule will not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.

Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for Federal agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). Pursuant to OMB Memorandum M-19-15, Improving Implementation of the Information Quality Act (April 24, 2019), DOE published updated guidelines which are available at: www.energy.gov/sites/prod/files/2019/12/f70/DOE%20Final%20Updated%20IQA%20Guidelines%20Dec%202019.pdf.

DOE has reviewed this final rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.

The regulatory amendments in this notice of final rulemaking reflecting changes related solely to internal agency organization, management or personnel, and as such, are not subject to the requirement for a general notice of proposed rulemaking under the Administrative Procedure Act (APA). ( See 5 U.S.C. 553(a)(2)). There is no requirement under the APA or any other law that this rule be proposed for public comment. For these same reasons, DOE finds good cause to waive the 30-day delay in effective date provided for in 5 U.S.C. 553(d).

As required by 5 U.S.C. 801(a)(1)(A), DOE will submit to Congress a report regarding the issuance of this final rule prior to the effective date set forth at the outset of this rulemaking. The report will state it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 804(2).

The Secretary of Energy has approved publication of this final rule.

This document of the Department of Energy was signed on June 5, 2023, by Jennifer Granholm, Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

For the reasons set forth in the preamble, the Department of Energy amends Chapters II, III, and X of Title 10 of the Code of Federal Regulations to read as follows:

This final rule implements  1 section 336 of the FAA Reauthorization Act of 2018 by requiring the installation and use of an installed physical secondary barrier (IPSB) that will be deployed (closed and locked) whenever the flightdeck door is opened while the airplane is in flight. This final rule affects operators conducting passenger-carrying operations under title 14 of the Code of Federal Regulations (14 CFR), part 121, with transport category airplanes operating in the United States by requiring the operators to use the IPSB, when installed, as part of their procedures for opening the flightdeck door. Affected operators must comply with this rule when operating transport category airplanes manufactured two years after the effective date of this final rule.

In this final rule, the FAA estimates costs of $35,000 for the purchase and installation of an IPSB. After the addition of training and other costs, the present value costs for this rule are $236.5 million ($20.3 million annualized) at a 7 percent discount rate and $505 million ($29 million annualized) at a 3 percent discount rate. When the flightdeck door must be opened for lavatory breaks, meal service, or crew changes, the flightdeck could be vulnerable to attack. The benefit of this rule, requiring installation and use of IPSBs on airplanes in part 121 service, is to slow such an attack long enough so that an open flightdeck door can be closed and locked before an attacker could reach the flightdeck.

The FAA's authority to issue rules on aviation safety is found in Title 49 of the United States Code (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.

This rulemaking is issued under the authority described in Subtitle VII, part A, subpart III, section 44701, “General Requirements.” Under that section, the FAA is charged with prescribing regulations and minimum standards for the design and performance of aircraft that the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority.

In addition, section 336, “Secondary Cockpit Barriers,” of the FAA Reauthorization Act of 2018, Public Law 115-254 (Oct. 5, 2018), directs the Administrator of the FAA to issue an order requiring installation of a secondary flightdeck barrier on “each new aircraft that is manufactured for delivery to a passenger air carrier in the United States operating under the provisions of part 121 of title 14, Code of Federal Regulations.”

Following the events of September 11, 2001, the FAA adopted standards for flightdeck security in January 2002 by adding 14 CFR 25.795 and amending 14 CFR 121.313. 2 Those amendments were intended to make the flightdeck resistant to forcible intrusion and small firearms, and prevent unauthorized entry into the flightdeck. These requirements were based on International Civil Aviation Organization (ICAO) standards, 3 and the recommendations of the Aviation Rulemaking Advisory Committee (ARAC)  4 Design for Security Harmonization Working Group. ARAC included representatives of aircraft owners and operators, airmen and flight crewmembers, airports, aircraft maintenance providers, aircraft manufacturers, public citizen and passenger groups, training providers, and labor organizations.

Even a strong and secure flightdeck door, however, must occasionally open to accommodate necessary activities such as lavatory breaks and meal service. Between the time of opening and closing the flightdeck door (door transition), the open flightdeck has some degree of vulnerability to attack. Such an attack could happen quickly, and leave insufficient time for the cabin crew to react.

Therefore, in 2007, the FAA promulgated requirements  5 to address the security of the flightdeck when the flightdeck door was opened, however briefly. Specifically, the FAA adopted §§ 121.584, “Requirement to view the area outside the flightdeck door,” and 121.587, “Closing and locking of flightcrew compartment door,” to require that the flightdeck door be locked when the airplane is in operation, unless it is necessary to open it to permit access by authorized persons, and require compliance with FAA-approved procedures for opening the door.

As a result of these new requirements, air carriers and type design holders developed various methods and designs, including the use of crewmembers and equipment and, in limited cases, IPSBs, 6 to help secure the flightdeck during the period when the flightdeck door was open during flight. To provide guidance and recommendations for these different methods and designs, RTCA, Inc. (RTCA), 7 formed a committee to develop recommended procedures and standards for airplane secondary barriers. In 2011, RTCA produced DO-329, “Aircraft Secondary Barriers and Alternative Flight Deck Security Procedures.” DO-329 describes various means of addressing the times when the flightdeck door must be opened. In this context, these means can be combinations of people, procedures and/or equipment. The document does not recommend one of these means over another, but provides advice on the use of each one to meet the objective of a secure flightdeck. Subsequently and based on the RTCA's report, the FAA issued Advisory Circular (AC) 120-110, “Aircraft Secondary Barriers and Alternate Flight Deck Security Procedures,” in 2015. That AC references various means of compliance with § 121.584(a)(1), which prohibits the flightdeck door from being unlocked during flight unless the operator has an approved procedure and visual device to verify that the area outside the flightdeck door is secure.

On October 5, 2018, Congress enacted the FAA Reauthorization Act of 2018 (the “Act”). Section 336 of the Act required the FAA to issue an order requiring installation of a secondary flightdeck barrier on each new aircraft that is manufactured for delivery to a passenger air carrier in the United States operating under provisions of part 121.

On June 20, 2019, to facilitate the implementation of the mandate in section 336 to require secondary barriers on certain aircraft, the FAA tasked ARAC  8 to recommend standards for IPSB. The ARAC formed the Flightdeck Secondary Barrier Working Group (the “Working Group”), under the Transport Airplane and Engine Subcommittee, to carry out the tasks. The Working Group included representatives from manufacturers, air carriers, and pilot and flight attendant unions. On February 27, 2020, the Working Group submitted its “Recommendation Report to Aviation Rulemaking Advisory Committee for Implementation of Section 336 of Public Law 115-254” (the “Report”)  9 to ARAC. ARAC accepted the Report in March of 2020 and forwarded it to the FAA. 10 The Report contained 21 recommendations, most of which were by consensus. 11 This final rule incorporates those consensus recommendations.

This rulemaking finalizes the NPRM published August 1, 2022, which proposed to implement section 336 of the Act by requiring that certain airplanes used to conduct passenger-carrying operations under 14 CFR part 121 ( i.e., domestic, flag, or supplemental) have an IPSB that protects the flightdeck from unauthorized intrusion when the flightdeck door is opened (87 FR 46892).

In the NPRM, the FAA proposed that the IPSB must resist intrusion, provide line-of-sight visibility to allow crewmember situational awareness of the area between the passenger cabin and the entry to the flightdeck, and meet certain physical standards ( i.e., design standards in new § 25.795(a)(4)), but still allow for necessary crewmember activities.

The proposed rulemaking would affect operators conducting passenger-carrying operations under part 121 with transport category airplanes. The NPRM proposed that operators would be required to incorporate the use of an installed IPSB into their flightdeck door opening procedures and require crewmembers to deploy the IPSB before opening the flightdeck door. The FAA proposed that the rule would apply to operation of transport category airplanes manufactured two years after the effective date of a final rule.

This rule adopts the proposal with limited changes to clarify the applicability of the part 25 design requirements for IPSBs to airplanes required by operating rules to have IPSBs, and to clarify that the requirement for part 121 operators' airplanes to be equipped with IPSB applies only to passenger-carrying transport category airplanes. The final rule also includes the “line of sight” design requirement as a part 25 design requirement, rather than an operating rule.

The FAA received comments from 31 commenters, including Airlines for America (A4A); Association of Flight Attendants-Communications Workers of America, AFL-CIO (AFA-CWA); Aerospace Industries Association (AIA); Air Line Pilots Association, International (ALPA); Airbus Commercial Aircraft (Airbus); National Civil Aviation Agency of Brazil (ANAC); Allied Pilots Association (APA); The Boeing Company (Boeing); Coalition of Airline Pilots Association (CAPA); Cabin Ops Safety Risk Management, LLC (Cabin Ops); Embraer S. A. (Embraer); International Coordinating Council of Aerospace Industries Associations-Cabin Safety Working Group (ICCAIA-CSWG); Japan Civil Aviation Bureau (JCAB); Regional Airline Association (RAA); Southwest Airlines Pilots Association (SWAPA); Transport Canada Civil Aviation (TCCA); the Transportation Trades Department, AFL-CIO (TTD); United Airlines, Inc. (United); and several individuals.

Commenters generally supported the implementation of an IPSB in transport category airplanes but submitted requests for additional modifications. These requests generally address the following: compliance time; international harmonization; applicability; retrofit of IPSBs onto the existing fleet; part 129 airplanes; crew staffing and training concerns; changes to the “reach through” requirement; requests that the FAA clarify whether a malfunctioning IPSB would prevent the airplane's operation; questions regarding whether operators need to upgrade equipment and procedures that provide information to the flightdeck; and the cost and benefit evaluation.

In addition, the commenters addressed the draft ACs that accompanied the NPRM, as well as requests for specific details pertaining to compliance. The FAA's responses to these comments can be found at the Dynamic Regulatory System ( drs.faa.gov ), along with the finalized ACs.

In the NPRM, the FAA proposed to amend § 121.313 by requiring part 121 operators to have an IPSB on transport category airplanes manufactured two years after the effective date of the final rule.

ALPA, APA, CAPA, SWAPA, and TTD recommended that the compliance period should be reduced, so that the rule applies to airplanes manufactured one year (12 months) after the effective date of this final rule. They stated that doing so would align with the intent of Congress, and the text of the legislation, which mandated the FAA to issue an order by October 5, 2019. These commenters reasoned that a one-year compliance period would be enough, because manufacturers and airlines were provided with sufficient notice of the substance and urgency of the requirement when the legislation mandated in 2018 that the FAA issue an order within a year, and when ARAC issued the Report in 2020. These commenters further stated that aircraft manufacturers should already have preparations substantially underway to facilitate the installation of IPSB on newly-manufactured aircraft. There has been voluntary industry movement toward designing and implementing IPSB since 2003 (two major airlines  12 voluntarily installed IPSB on more than a hundred of their aircraft, and two aircraft manufacturers  13 had previously offered IPSB as standard equipment on newly-manufactured aircraft), so some manufacturers already possess procedures to implement IPSB installation. Additionally, a consensus-based technical standard exists in an RTCA document;  14 the industry has had access to the ARAC recommendations addressing implementation of the legislation for more than two years; and the FAA also published draft ACs that provided recommended standards and procedures.

In contrast, A4A, AIA, Airbus, Boeing, Embraer, the ICCAIA-CSWG, and RAA recommended that the FAA increase the compliance period to three years (36 months) after the effective date of the final rule. Airbus stated that, because the requirements would impact many aircraft types and cabin interior configurations, the industry would be required to develop many IPSBs, each with unique type design criteria in parallel, resulting in the need for significant resources from original equipment manufacturers (OEMs), the supplier community, and the FAA to review and certify these unique designs. These commenters pointed out that, because the proposed requirements and the draft ACs provided performance-based requirements, additional time would be needed to derive specific design criteria to comply with the requirements. These commenters then provided general overviews of the steps required to develop, certify, test, manufacture, and install a new IPSB; to train crew and maintenance staff; and, to establish the necessary supply chain—the completion of which would necessitate more than two years. A4A stated that a 2-year implementation timeframe could only be possible if IPSBs are “plug-and-play” installations with already-existing parts. Boeing further pointed out that the industry is experiencing additional manufacturing delays due to the COVID-19 pandemic. In addition, these commenters reiterated a study  15 cited in the Report that predicted three years would be required to fully design and implement IPSB on newly-manufactured aircraft. Embraer and the ICCAIA-CSWG also stated that design holders and applicants would not be able to begin their compliance efforts until the FAA publishes its final rule.

Embraer also pointed to a DOT NPRM, published in January 2020, as support for a three-year compliance time. This NPRM  16 would require carriers flying single-aisle aircraft to make changes to their lavatory on new aircraft to better accommodate the needs of disabled passengers. Embraer stated this NPRM proposed changes similar in complexity to the installation of an IPSB, yet DOT had proposed a three-year compliance date after the publication of the final rule to provide the time necessary for equipment and airplane manufacturers to make required changes to the interiors of their airplane and obtain the appropriate regulatory approvals for those changes. TCCA commented that two years seems optimistic to design, certify, and implement IPSB installation.

In summary, arguments for shortening the compliance time are mainly based on the mandate in the legislation, and the amount of time that has passed since then. Arguments for extending the compliance time point to the engineering challenges for different aircraft types, and to the fact that, until a final rule is enacted, manufacturers do not have criteria on which to base designs.

The FAA notes that two years is more time than was given for the mandatory retrofit of reinforced flightdeck doors. Also, equipment and airplane manufacturers are starting from a position of greater experience and design understanding, than existed when the flightdeck door requirements were enacted. Conversely, it is true that final design and manufacturing is not feasible until the final standards are adopted. This makes a one-year compliance time unrealistic. As was discussed in the NPRM, the FAA also considered—in proposing the two-year compliance time the variety of competing concerns and arguments that were presented during the ARAC activity, and the resulting recommendations for either 18- or 36-month compliance times, all as memorialized in the Report. Given the foregoing, the FAA continues to determine that a two-year compliance time, as proposed by the NPRM, is appropriate.

In a related comment, United stated that, because the FAA proposed to place the compliance deadline in part 121, the burden to comply with proposed § 121.313 would fall upon air carriers, when air carriers do not control the timeline for design and approval of new IPSB designs. United recommended the compliance deadline be placed in 14 CFR part 25, which would create incentives for part 25 applicants to complete their designs and demonstrate compliance in a timely manner.

The FAA's regulatory approach in this rulemaking is consistent with other, similar rulemakings requiring updates to the existing fleet. 17 In addition, since the requirement only applies to certain operations, i.e., part 121, a generalized requirement in part 25 would not be appropriate. Ensuring that operators change their procedures to comply with § 121.584 require changes to part 121, and so adding the requirement to part 25 would not relieve operators from the burden of compliance. Therefore, consistent with the proposal, the applicability of the requirement for IPSB is provided in part 121.

In the NPRM, the FAA proposed to amend § 121.313 by adding paragraph (l) that would require the installation of an IPSB “that provides line-of-sight visibility between the flight door and the cabin” for aircraft under part 121 operations.

ANAC submitted regulatory text that would move this line-of-sight specification from proposed § 121.313(l) to a new § 25.795(a)(4)(vi). ANAC cited section III.A.4 of the NPRM preamble, which stated that the visibility requirement would be evaluated during certification. ANAC reasoned that part 25 design standards would be a more appropriate part for the visibility requirement, and would also allow foreign countries to comply even if they do not have an equivalent operating rule requiring the installation of an IPSB.

The FAA agrees that the line-of-sight provision is more appropriate as a part 25 design standard in § 25.795 for the reasons the commenter provided. Therefore, the final rule regulatory text reflects this approach.

In the NPRM, proposed § 25.795(a)(4) stated that an IPSB must be installed to resist intrusion into the flightdeck whenever the flightdeck door is opened. ANAC recommended that the FAA rewrite this requirement as, “[i]f an installed physical secondary barrier is installed, it shall resist intrusion into the flightdeck whenever the flightdeck is opened.” ANAC stated that, because Brazil and several other countries adopt part 25 for harmonization purposes, the proposed rule would make the IPSB mandatory for these countries when neither ANAC, nor ICAO, has identified IPSB as a security problem. ANAC recommended that the IPSB mandate be better fitted in the operating regulations of each country.

The FAA agrees with the commenter's reasoning and has clarified the final rule by including the clause, “if required by the operating rules” to § 25.795(a)(4) in the final rule.

Consistent with section 336 of the Act, the FAA intended for the proposed requirements for IPSB to apply only to transport-category airplanes used in passenger-carrying operations under part 121.

A4A and Embraer recommended revising the regulatory text to specify that the requirements exclude all-cargo airplanes, such as by explicitly stating that airplanes used solely to transport cargo would not be required to comply with the proposed mandate for IPSB in § 121.313 by adding the words “of passenger air carriers” in proposed § 121.313(l). These commenters believed Congress, and ARAC, clearly intended to exclude all-cargo air carriers.

The FAA agrees with the commenters' rationale regarding the potential confusion in the proposed regulatory text regarding all-cargo airplanes, and adds the term “passenger-carrying” in § 121.313(l) to specify the requirements will apply to passenger-carrying transport category airplanes only, excluding all-cargo airplanes. This change aligns with the text of section 336, which specified “passenger air carriers.”

Airbus also requested that the rule except “private use transportation” from compliance with proposed § 25.795(a)(4), because private use aircraft are usually configured with a cabin that cannot accommodate IPSB installation, and usually contain a low number of occupants who will be familiar with the aircraft. Airbus recommended that § 25.795(e), “Exceptions,” be amended accordingly.

The FAA does not agree with Airbus' request. As previously discussed, in the final rule, § 25.795(a)(4) references only those airplanes required by operating rules to have a flightdeck door. The only operating rule that requires an IPSB falls under part 121, and part 121 does not apply to private-use operations. Therefore, no change to proposed § 25.795(e) is needed and § 25.795(e) is finalized as proposed.

In the NPRM, the FAA proposed to apply the requirement for an IPSB only to new airplanes that are manufactured two years after the effective date of the final rule. The NPRM did not include a proposed retrofit requirement for those airplanes manufactured prior to that effective date.

ALPA, CAPA, APA, SWAPA, TTD, and an individual requested that the FAA extend the requirement for an IPSB to all aircraft conducting operations under part 121, including older airplanes, rather than to just newly-manufactured airplanes operating under part 121 as proposed. These commenters stated that not requiring an IPSB in existing aircraft under part 121 operations would become a known security vulnerability. These commenters stated that extending the requirements to the existing part 121 fleet would align with the intent of Congress in mandating an IPSB order be published by October 2019, because doing so would account for the many airplanes that have been manufactured without IPSB installation since that date. Additionally, JCAB, recognizing that the proposed regulations did not have a retrofit requirement, requested that the FAA provide how it evaluated the risks to already-manufactured aircraft.

A4A and United supported the implementation of the IPSB requirements to newly-manufactured aircraft only, as proposed in the NPRM, and stated that a retrofit requirement would not be warranted because current measures remain effective in addressing safety and security concerns. However, rather than being applicable to newly-manufactured aircraft operating under part 121, these commenters recommended that these requirements instead be applicable to newly type-certificated aircraft operating under part 121. A4A stated that application to all newly type-certificated aircraft would be supported by relevant data and the current multi-layered security environment for commercial aviation, including on-board security procedures. A4A and United further cited concerns that application to all newly-manufactured aircraft would result in non-commonality issues within their fleets, as well as increased cost burdens in training and maintenance.

Section 336 was explicit in mandating the FAA to require installation of IPSB on each newly manufactured aircraft. The purpose of this rulemaking is to implement the congressional mandate of IPSB on such aircraft.

In addition, a mandated retrofit is outside the scope of this final rule and would require an independent rulemaking action to implement. The FAA continues to monitor threats to aviation security in conjunction with the Transportation Security Administration (TSA) and other agencies. Should additional flightdeck security measures be deemed necessary, the FAA may propose additional rulemaking.

Similarly, the FAA also does not agree with the suggestion to make the requirements of this rule applicable only to newly-type certificated airplanes, because doing so would not meet the mandate from Congress. The legislation was explicit in that it mandates the FAA to require installation of IPSB on each new aircraft.

The FAA notes that it, and other U.S. Government agencies, use a variety of tools to continuously assess potential risks to aviation safety and security.

In the NPRM, the FAA did not propose to apply the requirement for IPSB to airplanes operating under part 129.

ALPA, APA, CAPA, SWAPA, and TTD requested that the requirements be extended to any aircraft operating under part 129 within the United States, and to part 129 air carriers who operate solely outside the United States but with aircraft registered in the United States. These commenters stated that this extension would follow the same rationale that resulted in the FAA extending the requirement to install hardened flightdeck doors from part 121 to part 129. They reasoned that, while the FAA is bound by the minimum requirements of the legislation in publishing an IPSB requirement, the FAA is not constrained by the legislation when exercising its general Title 49 statutory powers to regulate aviation safety in the public interest, and therefore could establish additional IPSB requirements beyond those expressly required by Congress.

As previously noted, the purpose of this final rule is to implement section 336 of the Act, which limited the applicability of the mandate for IPSB to airplanes manufactured for delivery to passenger air carriers operating under part 121. Moreover, as noted in the NPRM, there currently is no international standards organization, such as ICAO, proposing an IPSB; nor are other civil aviation authorities mandating, or proposing to mandate, an IPSB.

Moreover, extending these requirements to part 129 was not proposed in the NPRM, and is therefore out of scope for this final rule. Accordingly, here is no change and the rule is adopted as proposed in this matter.

Several commenters sought changes to the proposal to address crewmember staffing and training. In the NPRM, the FAA did not propose any requirements regarding crewmember staffing or training.

AFA-CWA and Cabin Ops recommended the FAA add a crew staffing requirement to this rule, by increasing the required number of flight attendants from one to two, for airplanes with 19 to 50 passenger seats. Currently, for airplanes with a passenger capacity from 19 to 50, only one flight attendant is required. 18 These commenters stated that when the flightdeck door is opened to allow a flightcrew member to leave the flightdeck—for example, to use the lavatory—no crewmember is in the cabin for the period of time that the flightcrew member is away, because the lone flight attendant must enter the flightdeck. They suggest that having a second, required cabin crewmember would maintain at least one crewmember in the cabin.

Cabin Ops also questioned whether the FAA should still require two persons to be on the flightdeck during times where a pilot leaves the flightdeck. The commenter stated that this was not realistic, and suggested that the FAA state in regulations and policy that each passenger air carrier should be required to conduct a safety risk assessment when applying the operational procedures to small regional aircraft.

In contrast, RAA stated that implementation of IPSB would provide an additional layer of security, whereas requiring two flight attendant represents increased long-term costs for certain small air carriers.

The FAA does not agree with the recommendation to increase flight attendant staffing, nor with Cabin Ops' suggestion that an IPSB is incompatible with the requirement for two persons on the flightdeck at all times. 19 Historically, aircraft with a seating capacity of 20 to 50 passengers have successfully and safely operated with one flight attendant. The FAA currently has no data to support mandating two flight attendants on these aircraft. In addition, the installation of an IPSB will isolate the flightdeck door from the cabin in times when it must open. Finally, adding a new crew requirement is outside the scope of the NPRM. The FAA expects that each air carrier, in accordance with part 5, will use its approved processes within its Safety Management System (SMS)  20 to identify and control risks identified in its operation.

TTD requested the rule require training on IPSBs for flight attendants.

The FAA does not agree that a specific training requirement is necessary for this rule. When new equipment is installed on an aircraft, § 121.421, “Flight attendants: Initial and transition ground training,” requires flight attendants to be trained on that equipment.

Finally, JCAB, noting the importance of the IPSB only being deployed for a short length of time, asked that such be specified in the operating manual.

Given that the purpose of an IPSB is to slow a security threat so that the flightdeck door can be closed, the FAA does not agree that specifying a maximum duration that the IPSB can be deployed is necessary.

In the NPRM, the FAA proposed to apply the IPSB requirement to all transport-category airplanes that are required to have a flightdeck door, regardless of the airplane's size. The FAA also asked for comment, including supporting data, regarding whether aircraft used for flights of shorter distance or duration should be excluded from the requirement, due to the decreased likelihood of the flightdeck door being opened during such flights.

In response, Embraer, the ICCAIA-CSWG, and RAA asked the FAA to consider excluding from the final rule smaller transport category airplanes with flights of shorter duration. APA, Embraer, and RAA also supported excluding smaller transport category airplanes from this final rule, regardless of the flight duration.

The ICCAIA-CSWG and Embraer, stated that, although short duration flights can be associated with any size of airplane, short flights are to be expected with smaller transport category airplanes, which have a more limited maximum flight duration. These commenters also stated that smaller transport category airplanes have confined interior spaces, with lavatories, galleys, and wardrobes located close to the flightdeck, leaving a very small space for changes to aircraft design. Finally, these commenters stated the design challenges created by the proposed IPSB requirement due to increases in cost and weight, would be more significant for smaller transport category airplanes as compared to the larger airplanes.

A4A, Embraer, and the ICCAIA-CSWG stated that on smaller transport category airplanes, the combination of an Improvised Non-Installed Secondary Barrier (INSB) with procedures and crewmembers training would provide appropriate protection during flightdeck door transition.

In contrast, ALPA, APA, CAPA, and AFA-CWA agreed with the FAA that there was no obvious design parameter, such as passenger capacity or airplane gross weight, which correlated with short flights.

Prior to publication of the NPRM, the FAA tasked ARAC to provide information that could be applied to determine if a certain size of aircraft could be exempted from the requirement to have an IPSB. ARAC did not provide a recommendation on that topic. The NPRM included a similar request for information; however, no specific data or proposed criteria were submitted. Accordingly, while commenters made a number of assertions regarding design challenges, neither the commenters nor ARAC provided data to support a change to the proposal to account for aircraft size or flight duration.

In the NPRM, the FAA proposed in § 25.795(a)(4)(iv) that the IPSB must prevent a person from reaching through it and touching the flightdeck door.

Airbus, Boeing, and the ICCAIA-CSWG recommended that the FAA change the phrase “touching the flightdeck door” to incorporate different words, including “grasping,” “blocking,” and “grabbing” the flightdeck door. They argued that such changes would be more inclusive of the ways a person can touch a flightdeck door.

The FAA does not agree that the suggested words are more inclusive. Any of the proposed words would need to be defined, whereas the word “touch” is well-understood and more conservative than the recommended words. As such, § 25.795(a)(4)(iv) will remain as proposed in the final rule.

TCCA asked the FAA if it will mandate be a minimum distance between the IPSB and the flightdeck door.

The FAA declines to impose a specified minimum distance between the IPSB and the flightdeck door, because the requirements of this rule are performance-based.

In the NPRM, the FAA did not propose any requirements regarding the IPSB and the Master Minimum Equipment List (MMEL). 21

A4A, Boeing, TCCA, and United commented that the FAA should allow operators Minimum Equipment List (MEL) relief should the IPSB malfunction or become inoperable. They suggested that passenger air carriers should be allowed to temporarily operate aircraft with an inoperable IPSB. These commenters also suggested that the final rule ensure that operators be able to obtain MEL relief for inoperable IPSBs. A4A and United also suggested that in addition to providing MEL relief in the final rule, that the FAA should issue an MMEL Policy Letter that allows for aircraft operation with an inoperative IPSB.

For purposes of the airplane's potential deferral under its MEL or MMEL, and its continued compliance with § 121.584(a), the FAA does not consider an IPSB to be “essential for safe operations under all operating conditions,” in accordance with § 121.628(b)(1). Therefore, the IPSB may be included in an operator's MEL. Finally, in accordance with existing processes, the FAA will evaluate whether an MMEL Policy Letter is necessary.

In the NPRM, the FAA intended proposed § 121.584(a)(3) to prohibit an operator from unlocking or opening the flightdeck door during flight unless there was an approved audio procedure and an approved visual device to verify that the IPSB, if an IPSB is required to be installed, has been deployed.

Embraer and the ICCAIA-CSWG raised concerns that this requirement could be interpreted as requiring the flightcrew to see—from the flightdeck—that the IPSB is installed, whereas some aircraft configurations may render it impossible to see from the flightdeck that the IPSB is deployed. 22 These commenters stated that, if proposed § 121.584(a)(3) were interpreted too strictly, it would require operators to install a system inside the flightdeck to inform the flightcrew that the IPSB is deployed, thus creating an unnecessary burden for those aircraft configurations. These commenters stated that this was not recommended in the Report, nor were the costs of a new visual system accounted for in the NPRM.

Boeing commented that the FAA should have emphasized in the NPRM that compliance with proposed § 121.584(a)(3) can be satisfied with audio and visual devices present in current airplanes and associated crew procedures, without the need for additional flightdeck indications such as an electronic flightdeck indication that the IPSB is deployed.

As explained in the NPRM, the FAA proposed § 121.584(a)(3) to make sure that, if an IPSB is installed, it is deployed any time the flightdeck door is opened during flight. However, this rule does not require the installation of any specific system inside the flightdeck to inform the flight crew that the IPSB is deployed and secured. Operators will work with their FAA oversight office to develop procedures for opening the flightdeck door for different aircraft configurations. The FAA anticipates that operators will continue to utilize various methods similar to their current approved procedures regarding the opening of the flightdeck door ( e.g., audio and visual devices present in current airplanes and associated procedures).

The FAA provided a Preliminary Regulatory Impact Assessment for the proposed requirements in the NPRM. A4A stated that the FAA should have considered, in its cost-benefit analysis, the technical difficulties and the on-going cost implications for the requirement to maintain and operate aircraft with functional IPSB. A4A cited the challenges of redesigning interiors on smaller aircraft with space, monument  23 limitations, and potential maintenance issues for IPSB due to their moving parts, and significant training costs for crewmembers who must work across a fleet with mixed IPSB equipage.

The FAA recognizes the technical difficulties of installing IPSBs on some smaller airplanes, which might increase costs. The FAA relied on the ARAC's $35,000 per airplane estimate, which included the entire range of affected airplane models, so the FAA's estimate of the overall fleet remains valid. The FAA also estimates that training costs per employee for a simple device such as an IPSB is very low (training time of approximately 30 minutes). Once an employee is trained on a particular IPSB model, the FAA does not believe there will be significant training costs for training on additional models, due to their similarity of function.

RAA suggested that the FAA consider excluding operators of short duration flights from the final rule as a means to reduce economic burdens on small entities. The commenter cited the Report which recognized that, for short flights, the flightdeck door may be less likely to be opened, in which case the IPSB would not provide the intended benefit. The commenter also referenced a DOT NPRM  24 regarding accessible lavatories on single-aisle aircraft applicable to single-aisle aircraft with 125 or more passenger seats, because DOT tentatively recognized that aircraft with fewer than 125 seats tend to be shorter-haul aircraft, with shorter flight times, where it may not be cost-beneficial to require interior improvements to lavatories, and the commenter extended this rationale to the flightdeck door. The FAA addresses this comment in the section titled “Regulatory Flexibility Act,” under the subsection titled “Significant Issues Raised in Public Comments.”

In the NPRM preamble section titled “Proposed Exception from Incompatible Regulations,” the FAA proposed that, during its certification of the IPSB installation, the requirements of §  25.365 would not apply to IPSBs in the deployed configuration.

TCCA stated that the proposed regulation was not incompatible with the provisions of § 25.365, “Pressurized compartment loads.” TCCA questioned the utility of the expense of building a decompression-resistant IPSB when the Report estimated the probability of decompression to be 10 − 9 when the IPSB is deployed. If the FAA's intention was to grant exemption from § 25.365 when an IPSB is deployed, then TCCA recommended that the FAA justify that intention based on a cost-benefit argument instead of incompatibility, and also specify the estimated cost differential of a decompression-resistant IPSB.

The FAA agrees that “compatibility” may not be the most accurate term to describe how the FAA makes compliance findings with § 25.365 when the IPSB is deployed. A better term is “applicability.” As noted in the NPRM, the FAA has long considered that § 25.365 does not apply to interior features that have transient configurations (such as a lavatory door) when a door is open. Because deployment of the IPSB is also transient, the FAA has determined that § 25.365 is not applicable to the IPSB when deployed. However, should IPSB designs be proposed that are intended to remain in place, § 25.365 would be applicable.

Airbus recommended that the FAA increase its estimated cost for each IPSB unit from $35,000 to $50,000, because if the cost included recurrent and non-recurrent costs, then it should cover development expenses ( i.e., engineering costs, stress and analysis, certification testing and witnessing, different prototypes for different aircraft configurations) and supplier development costs.

The FAA does not agree with this recommendation. The cost analysis in the regulatory evaluation for the proposed rule included the $9 million nonrecurring engineering costs estimated by ARAC. That estimate would have included all costs that Airbus characterizes as development costs, and includes assumed up-front costs for initial aircraft design, partial design reuse for remaining models, and unique installations for each aircraft model.

In the NPRM, the FAA divided total losses ($35.7 billion) by 50-year cumulative present value costs ($236.5 million) to derive an annual probability of an attempted attack of 0.66 percent. An individual commenter stated that this calculation was not correct, that dividing a loss by a 50-year cost did not yield an annual probability, but 0.66 percent spread over many years. The commenter suggested that the correct calculation to assess the break-even annual probability of an attempted attack would be to divide total losses ($35.7 billion) by annualized costs ($20.3 million), leading to a probability of an attempted attack of 0.057 percent per year.

The FAA does not agree with the suggestion that the break-even analysis is incorrect. An annual probability of 0.66 percent translates to one successful attack every 151 years (1/151 = 0.0066 or 0.66 percent). The commenter, in his own comment, stated that “even if there were only one terrorist hijacking attack in one hundred and fifty years (annual attack probability of 0.7 percent) . . ., secondary barriers are cost effective.” The FAA points out that this 0.7 percent estimate is effectively identical to the FAA's estimate of 0.66 percent.

In addition, the individual commenter took exception to the FAA characterization, in the Regulatory Impact Analysis section of the NPRM, of the commenter's quantification of benefits in the Briefing Note (Stewart and Mueller, 2019)  25 as “problematic.” The commenter stated that any quantifiable risk involves some subjectivity and uncertainty in predicting rates of disruption for security measures.

The statement may be true, but that does not preclude the FAA from determining that the subjectivity and uncertainty is so great as to make accurate estimates problematic; for example, the airport disruption rate for airport checkpoint screening of 15 percent estimated in the Briefing Note compared to a disruption rate of 50 percent estimated by other researchers.

Another individual also stated this rule would have no possible break-even benefit, given the finding of the RIA that the annual probability of an attempted breach of the flight compartment door is 0.66 percent while costing travelers $236.5 million per year. Using worldwide data for commercial flights, the commenter suggested that the annual probability of a 9/11-type terrorist attack implied by the break-even analysis was orders of magnitude too high.

The FAA notes that $236.5 million is not the yearly cost of the rule; rather, it is the total present value cost of the rule over the 49-year estimation period, from 2023 to 2072. Table 1 of the regulatory evaluation shows this, and also shows that the corresponding annualized cost is $20.7 million (at a 7 percent discount rate). In addition, the FAA does not agree with the use of all commercial flights worldwide as basis for consideration. A 9/11-type attack would likely require hijacking of a large transport category airplane. Moreover, the focus of the proposed rule and the regulatory analysis is necessarily on transport category airplanes taking off and landing in the United States. Accordingly, the commenter's use of all commercial flights worldwide, including flights with non-transport category aircraft, leads to estimates of excessively low probabilities.

TCCA and an individual expressed concern that deployment of the IPSB would signal that the flightdeck door was about to be opened, which might have a negative impact on security. TCCA noted that providing some visual obscuration might address this concern, but could conflict with the line-of-sight requirement.

The FAA notes that current procedures for opening the flightdeck door could also provide a similar signal. In that vein, the IPSB enhances flightdeck security, since this rule mandates that the flightdeck door will not be unlocked or opened until after the IPSB is deployed.

In the NPRM, the FAA proposed static load requirements in § 25.795(a)(4) for the IPSB when it is deployed. Airbus requested more details on how and where to apply the requested load on the IPSB.

The FAA notes that the load must be applied at “the most critical location,” and that this requirement is performance-based. The applicant for a design approval of an IPSB will have to define the critical locations for the load. However, the FAA provided draft guidance for applicants on this topic in AC 25.795-10, “Installation of Physical Secondary Barriers for Transport Category Airplanes,” which is in the docket for this rulemaking. This AC states that critical locations should include the IPSB center and the IPSB latch area. This AC will be finalized with the publication of this rule.

TCCA asked whether the aircraft size and weight criteria from § 25.795(b) would be applicable to the proposed § 25.795(b)(4).

The aircraft size and weight criteria in paragraph (b) of § 25.795 are not relevant to the flight deck door requirements of paragraph (a); and, as this rule adds design requirements for IPSB to paragraph (a), the aircraft size and weight criteria in paragraph (b) continue to be inapplicable.

Embraer recommended an edit to the NPRM preamble, under the section titled “Proposed exception from incompatible regulations,” regarding a sentence which stated that, because the proposed rule would not require that the IPSB be deployed during taxi, takeoff, and landing, the amount of time that the IPSB is deployed should be “very brief in comparison to the duration of the flight.” Embraer recommended that the sentence should end at “very brief” to give flexibility for the operator to define, according to its operating procedures, the amount of time that the IPSB is deployed.

The FAA confirms that it was the agency's intent to convey that operators have flexibility to define the amount of time that the IPSB is deployed.

Three individuals commented that a modular, lightweight, non-porous device would be the fastest and most cost-effective way to install a barrier on existing airplanes.

The FAA notes that the requirements in this final rule are performance-based standards, allowing for various designs.

An individual commenter recommended the FAA require that both the main flightdeck door and the IPSB not be able to be opened at the same time.

This recommendation would likely involve significant design complexity, and cause delay while the FAA conducts additional risk analysis. The FAA has not included this recommendation in the final rule.

Federal agencies consider impacts of regulatory actions under a variety of executive orders and other requirements. First, Executive Order 12866 and Executive Order 13563, as amended by Executive Order 14094 (“Modernizing Regulatory Review”), direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, the Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). The current threshold after adjustment for inflation is $177,000,000 using the most current (2022) Implicit Price Deflator for the Gross Domestic Product. This portion of the preamble summarizes the FAA's analysis of the impacts of the final rule. The FAA provides a detailed Regulatory Impact Analysis in the docket of this rulemaking.

In conducting these analyses, the FAA determined that this final rule (1) has benefits that justify its costs; (2) is an economically “significant regulatory action” as defined in section 3(f) of Executive Order 12866; (3) will not have a significant economic impact on a substantial number of small entities; (4) will not create unnecessary obstacles to the foreign commerce of the United States; and (5) will not impose an unfunded mandate on State, local, or tribal governments, or on the private sector by exceeding the threshold identified above. These analyses are summarized below.

During many flights, the flightdeck door must be opened for lavatory breaks, meal service, rest periods, crew changes, etc. During the time of door transition, the open flightdeck has some degree of vulnerability to attack. During these openings, an attack on the flightdeck could happen quickly; this could leave insufficient time for passengers and cabin crew to react. However, there have been no breaches of a flightdeck since the September 11, 2001 terrorist attacks.

The purpose and functional benefit of IPSBs, which Congress directed the FAA to require by mandate, is to enhance the flightdeck security procedures of § 121.584 by slowing the time by which an unauthorized person could reach the flightdeck by at least the time required to open and reclose the flightdeck door. 26

A Briefing Note  27 (Stewart and Mueller, 2019) provided to the ARAC Flightdeck Secondary Barrier Working Group by one of the members, applied an engineering technique—reliability analysis—to the TSA's “Layers of Security”  28 to estimate the benefits of secondary barriers in reducing the vulnerability of the U.S. commercial fleet to a 9/11-like terrorist attack. This approach requires estimates of “disruption rates” for the various TSA layers of security and also requires an estimate of the probability of a 9/11-like terrorist attack. Estimates of security layer disruption rates are very difficult to make and, accordingly, are highly uncertain. For example, Stewart and Mueller estimate a disruption rate of 15% for the TSA Airport Checkpoint Screening security layer, whereas Martonosi and Barrett  29 estimate the disruption rate to be 50%. Estimating the probability of a 9/11-like terrorist attack is also difficult since there has been only one such event. Consequently, estimating quantified benefits of the IPSB requirements is problematic. Accordingly, the FAA does not endorse the analysis or conclusions of this Briefing Note.

However, based on estimates of costs of the 9/11 attacks, the FAA has conducted a break-even analysis. An authoritative study  30 of the costs to New York City of the 9/11 attacks provides an estimate of $26.6 billion in physical capital and short-term earnings losses, 31 which amounts to $38.86 billion in 2021 dollars. 32 What remains is to estimate the cost of the 2,763 lives lost in the 9/11 attacks. Using DOT's $11.8 million dollar estimate of the Value of Statistical Life (VSL), 33 that loss is $32.60 billion, which added to the physical capital and earnings losses, makes the total New York City costs to be $71.46 billion. The FAA estimates the cost of a single-airplane 9/11-type attack (and the value of an averted attack) to be half that at $35.73 billion. The break-even analysis estimates what the annual probability of a single-airplane 9/11-type attack must be in order for the final rule to break even, i.e., for the benefits of the final rule to be equal to its costs. Dividing the $236.5 million cost  34 of the proposed rule by the $35.7 billion averted attack value yields the breakeven annual probability of an attack to be 0.66%. Multiplying this calculated breakeven probability of attack times the $35.7 billion averted attack value necessarily returns the $236.5 million break-even expected value of averting an attack. Such a breakeven analysis implicitly assumes that the proposed rule is completely effective. Thus, here the final rule breaks even, under the assumptions that the probability of an attempted attack is 0.66% per year and that the rule will be 100% effective in thwarting any such attack.

The FAA uses the cost estimate of $35,000 provided by the Report for the purchase and installation of an IPSB. Training costs for pilots and flight attendants are estimated using training hours from the Report and the opportunity costs of pilots and flight attendants estimated from annual hourly wages from the Bureau of Labor Statistics. Costs are estimated in two stages. First-stage costs are calculated for the 25-year period, 2023-2047, during which the fleet operating under part 121 gradually becomes fully equipped with IPSBs. Second-stage costs are calculated to include in the analysis a full 25-year airplane life cycle (2048-2072) for which the entire part 121 fleet is equipped with IPSBs.

The FAA estimates the rule will begin to apply to new airplanes operating under part 121 by the end of 2023. The FAA uses its Aerospace Forecast 2020-2040 to estimate the annual increase in the passenger fleet operating under part 121. 35 The sum of the forecast increase in the fleet and the number of retirements determines the annual increase in new airplanes operating under part 121 and therefore the annual number of IPSBs that will be installed in airplanes destined for part 121 operations. Annual retirements are estimated assuming a retirement rate (3.57%) that is consistent with the 2020-2040 forecast of the number of airplanes in part 121 operations. A similar analysis is done to determine the IPSB training costs of pilots and flight attendants, except that training costs apply to current as well as future pilots and flight attendants.

As previously noted, second-stage costs are calculated in order to include a full 25-year airplane life cycle (2048-2072) for which the entire part 121 fleet is equipped with IPSBs. For this second stage, the FAA is well beyond the terminal date of the FAA forecast and, accordingly, assumes a constant growth rate for the part 121 fleet. The constant growth rates for pilots and flight attendants are as before.

Stewart and Mueller also discuss potential added risks associated with IPSBs, including, for example, that crew vigilance and responsiveness might be reduced in the presence of an IPSB. The FAA notes that it does not find significant downsides to the installation of the ISPBs if all other relevant regulations are complied with.

Table 1 summarizes the total costs of the rule by combining stage one and stage two costs. At a 7 percent discount rate, the present value total costs of this rule are $236.5 million with annualized costs at $20.3 million. At a 3 percent discount rate, the present value total costs of this rule are $505.0 million with annualized costs at $ 29.0 million.

At this time, neither other civil aviation authorities nor ICAO have identified secondary barriers as a security priority. Therefore, extending the IPSB requirement to foreign air carriers would be without the agreement of other civil aviation authorities. After the events of September 11, 2001, the FAA did apply the hardened flightdeck door requirement to foreign air carriers, but the need for hardened flightdeck doors was recognized internationally and the FAA's standards were reflected in the requirements of most other countries. The FAA estimates that by the time IPSBs are fully adopted by part 121 operators, 35% of part 121 and part 129 operating commercial passenger aircraft will not have an IPSB.

ARAC recognized that, for short flights, the flightdeck door may not need to be opened, in which case the IPSB would not provide the intended benefit. However, ARAC was unable to identify any airplane design parameter, such as passenger capacity or airplane gross weight that correlates with short flights. Also, the range of all the airplane models that will be affected by this rule exceeds the maximum flight length at which opening the flightdeck door is unlikely. Therefore, this rule does not address an airplane's size or range, or duration of flight.

The Regulatory Flexibility Act (RFA) of 1980, Public Law 96-354, 94 Stat. 1164 (5 U.S.C. 601-612), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857, Mar. 29, 1996) and the Small Business Jobs Act of 2010 (Pub. L. 111-240, 124 Stat. 2504, Sept. 27, 2010), requires Federal agencies to consider the effects of the regulatory action on small business and other small entities and to minimize any significant economic impact. The term “small entities” comprises small businesses and not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The FAA published an Initial Regulatory Flexibility Analysis (IRFA) in the proposed rule to aid the public in commenting on the potential impacts to small entities. The FAA considered the public comments in developing the final rule and this Final Regulatory Flexibility Analysis (FRFA). An FRFA must contain the following:

(1) A statement of the need for, and objectives of, the rule;

(2) A statement of the significant issues raised by the public comments in response to the IRFA, a statement of the assessment of the agency of such issues, and a statement of any changes made in the proposed rule as a result of such comments;

(3) The response of the agency to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA) in response to the proposed rule, and a detailed statement of any change made to the proposed rule in the final rule as a result of the comments;

(4) A description of and an estimate of the number of small entities to which the rule will apply or an explanation of why no such estimate is available;

(5) A description of the projected reporting, recordkeeping, and other compliance requirements of the rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record; and

(6) A description of the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statues, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected.

This rule is needed to satisfy the requirements of section 336 of the FAA Reauthorization Act of 2018. This law requires that the FAA issue an order for the installation of Secondary Cockpit Barriers on each new airplane that is manufactured for delivery to a passenger air carrier in the United States operating under part 121.

No issues were raised in direct response to the IRFA. However, in comments to the NPRM, some commenters suggested that the FAA consider excluding smaller transport category airplanes from the IPSB requirement as small transports typically have a limited flight duration. As recognized by the ARAC, for short flights the flightdeck door may not need to be opened, in which case the IPSB would not provide the intended benefit. Two commenters stated that on smaller airplanes, a combination of an Improvised Non-Installed Secondary Barrier (INSB) and establishment of procedures and crewmembers training would provide appropriate protection during flightdeck door transition. Some commenters also stated that smaller transport category aircraft have confined interior spaces with lavatories, galleys, and wardrobes close to the flightdeck, leaving a very small space for changes to aircraft design. These commenters also stated that the design challenges created by the IPSB rule, due to increases in cost and weight, are more significant for smaller transport category airplanes as compared to larger transports. RAA specifically suggested that the FAA consider excluding operators of short duration flights from the final rule as a means to reduce economic burdens on small entities.

References to cost impacts on small transport airplanes are relevant here to the extent that they are operated by small operators. Excluding small operators from the rule is infeasible because no operator would designate airplanes for short flights only and even if they did, the FAA could not be assured that they would not be used for longer flights where an IPSB could be safety-enhancing. The magnitude of the economic impact on small entities is estimated in section 5 below. Even though the FAA makes a very conservative estimate there by assuming immediate installation of IPSBs, at $35,000 apiece, on a 2% revenue criterion, the FAA shows the economic impact to be insignificant, ranging from 0.06% to 1.13% of revenues for small operators. If $35,000 is deemed too low because confined space significantly raises the IPSB cost for small operators, that estimate can be stress tested by doubling the IPSB cost estimate to $70,000. This test increases the range of economic impact from 0.12% to 2.26%. With just 2 of the 11 operators for which the FAA has data showing an impact just over 2%, the FAA still finds an insignificant impact on a substantial number of operators.

The Chief Counsel for Advocacy of the SBA has not filed any comments in response to the proposed rule.

The RFA defines small entities as small businesses, small governmental jurisdictions, or small organizations. In 5 U.S.C. 601(3), the RFA defines “small business” to have the same meaning as “small business concern” under section 3 of the Small Business Act. The Small Business Act authorizes the Small Business Administration (SBA) to define “small business” by issuing regulations.

SBA has established size standards for various types of economic activities, or industries, under the North American Industry Classification System (NAICS). 37 These size standards generally define small businesses based on the number of employees or annual receipts.

NAICS has classified certificate holders operating under part 121 in either NAICS 481111, Scheduled Passenger Air Transportation or NAICS 481211, Nonscheduled Chartered Passenger Air Transportation, or both. Since the size standard for either industry is the same at 1,500 employees, it is of no concern in which of the two industries they are classified.

In the regulatory impact analysis for this rulemaking, a total of 43 operators operating under part 121 were identified in the FAA's National Vital Information Subsystem (NVIS) data base. Table 2 lists 23 of these operators identified in this study as having less than 1,500 employees and therefore potentially subject to consideration under the Regulatory Flexibility Act. Twelve of these operators were identified as small based on airline employment data (Table 2, col. 3) from the DOT Bureau of Transportation Statistics. 38 The remaining eleven operators were identified as having less than 1,500 total employees on the basis of their numbers of operations and maintenance employees (also from the NVIS database). One of the small operators, Piedmont Airlines, was excluded from the regulatory flexibility analysis as it is a wholly-owned subsidiary of American Airlines. Since the remaining 22 small operators are more than 50% of the part 21 operator population, the FAA estimates that a substantial number of small firms are affected by this rulemaking.

Since the IPSB rule applies to only new airplanes entering the fleet, the analysis assumes that each operator's current fleet is replaced immediately even though the fleet airplanes generally will be replaced only when they are retired. Though airplanes could be retired any time over the next 25 years depending on the age of the airplane, the analysis assumes immediate replacement to ensure that the economic impact is not underestimated. The regulatory impact analysis assumes that the average retirement age of transport category airplanes is 25 years.

The economic impact is assessed using 11 of the 22 small operators for which revenue data is available from Cirium's (formerly FlightGlobal) FlightFleets Analyzer. The analysis uses average revenue for the five-year period 2015-2019. Revenue figures for the 11 operators are available for an average of 3.45 years. For an operator, the economic impact is measured as the estimated $35,000 cost of an FAA-certified IPSB times number of airplanes, as a percentage of the average revenue. The number of airplanes is from the SPAS database as of January 9, 2020. The regulatory impact analysis also considers training costs for flight attendants and pilots, but these costs are not included here as they have a trivial effect on the results.

As Table 2 shows, the economic impact ranges from 0.06% and 1.13% of sales, which averages to 0.60%. On a 2% criterion that the economic impact is significant only if cost is at least 2% of a small firm's annual revenues, there is no significant economic impact for any small firm. On a 1% criterion, the economic impact is barely significant for just 2 of the 11 firms for which data is available. Bearing in mind that these estimates are very conservative, the FAA concludes that there is not a significant impact on a substantial number of small firms.

The FAA evaluated alternatives to this rulemaking that could minimize impacts on small entities. The FAA identified only alternative 2 of its regulatory impact analysis as potentially minimizing such impacts. Specifically, the FAA considered exempting short duration flights from the rule as a means of reducing economic impacts on small entities. ARAC recognized that, for short flights, the flightdeck door may not need to be opened, in which case the IPSB would not provide the intended benefit. However, ARAC was unable to identify any airplane design parameter, such as passenger capacity or airplane gross weight that sufficiently correlates with short flights. Also, the range of all the airplane models that will be affected by the rule exceeds the maximum flight length at which opening the flightdeck door is unlikely.

The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards.

The FAA has assessed the potential effect of this final rule and has determined that it will have a legitimate domestic objective, in that it will increase the safety of the United States from terrorist attacks on U.S.-operated airplanes. This rule would not operate in a manner as to directly affect foreign trade and, therefore, would have little or no effect on foreign trade.

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $177.0 million in lieu of $100 million.

This rule does not contain such a mandate. Therefore, the requirements of Title II of the Unfunded Mandates Reform Act do not apply.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. The FAA has determined that there will be no new requirement for information collection associated with this rule.

In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to ICAO Standards and Recommended Practices to the maximum extent practicable. The FAA has determined that there are no ICAO Standards and Recommended Practices that correspond to these regulations.

In accordance with the provisions of regulations issued by the Council on Environmental Quality (40 CFR parts 1500 through 1508), FAA Order 1050.1F identifies FAA actions that are categorically excluded from preparation of an Environmental Assessment or Environmental Impact Statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this final rule action qualifies for the categorical exclusion identified in paragraph 5-6.6(d) because no significant impacts to the environment are expected from publication of this final rule and it involves no extraordinary circumstances.

The FAA has analyzed this final rule under the principles and criteria of Executive Order (E.O.) 13132, Federalism. The FAA has determined that this action will not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, will not have federalism implications.

Consistent with Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, 39 and FAA Order 1210.20, American Indian and Alaska Native Tribal Consultation Policy and Procedures, 40 the FAA ensures that Federally Recognized Tribes (Tribes) are given the opportunity to provide meaningful and timely input regarding proposed Federal actions that have the potential to 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; or to affect uniquely or significantly their respective Tribes. At this point, the FAA has not identified any unique or significant effects, environmental or otherwise, on tribes resulting from this final rule.

The FAA analyzed this final rule under E.O. 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). The FAA has determined that it is not a “significant energy action” under the Executive order and is not be likely to have a significant adverse effect on the supply, distribution, or use of energy.

Executive Order 13609, Promoting International Regulatory Cooperation, promotes international regulatory cooperation to meet shared challenges involving health, safety, labor, security, environmental, and other issues and to reduce, eliminate, or prevent unnecessary differences in regulatory requirements. The FAA has analyzed this action under the policies and agency responsibilities of Executive Order 13609, and has determined that this action will have no effect on international regulatory cooperation.

A copy of the NPRM, all comments received, this final rule, and all background material may be viewed online at www.regulations.gov using the docket number listed above. Electronic retrieval help and guidelines are available on the website. It is available 24 hours each day, 365 days each year. An electronic copy of this document may also be downloaded from the Office of the Federal Register's website at www.federalregister.gov and the Government Publishing Office's website at www.govinfo.gov. A copy may also be found at the FAA's Regulations and Policies website at www.faa.gov/regulations_policies.

Copies may also be obtained by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW, Washington, DC 20591, or by calling (202) 267-9677. Commenters must identify the docket or notice number of this rulemaking.

All documents the FAA considered in developing this final rule, including economic analyses and technical reports, may be accessed in the electronic docket for this rulemaking.

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires the FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. A small entity with questions regarding this document may contact its local FAA official, or the person listed under the FOR FURTHER INFORMATION CONTACT heading at the beginning of the preamble. To find out more about SBREFA on the internet, visit www.faa.gov/regulations_policies/rulemaking/sbre_act/.

In consideration of the foregoing, the Federal Aviation Administration amends chapter I of title 14, Code of Federal Regulations as follows:

The FAA has received a report indicating a quality audit found aft fuselage sloping longerons manufactured with an overaged condition ( i.e., understrength). The FAA determined this occurred because the longerons were not properly checked for conductivity and hardness during manufacturing and consequently were exposed to excessive hot forming temperatures, which reduced the material strength properties of the longeron. An aft fuselage sloping longeron manufactured with an overaged condition would reduce the static strength of the longeron below limit load ( i.e., maximum load to be expected in service). If both aft fuselage sloping longerons are understrength, the structural integrity of the airplane would be reduced below limit load, which could lead to failure of both longerons. This condition, if not addressed, could result in loss of the airplane. The FAA is issuing this AD to address the unsafe condition on these products.

The FAA is issuing this AD because the agency has determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

The FAA reviewed Lockheed Martin Aeronautics Company Alert Service Bulletin A382-53-69, dated April 12, 2023, for Lockheed Martin Corporation/Lockheed Martin Aeronautics Company (Lockheed) Model 382, 382B, 382E, 382F, and 382G airplanes; and Model C-130A, HP-C-130A, EC-130Q, 282-44A-05 (C-130B), C-130B, and C-130H airplanes. This service information specifies procedures for reviewing the airplane maintenance records to determine if the left or right aft fuselage sloping longeron, having part number (P/N) 342986-( ), has been replaced on or after December 31, 2012, and applicable on-condition actions. The on-conditions actions include doing a conductivity check on any replaced longeron or any longeron for which it cannot be conclusively determined that it has not been replaced; and doing a Rockwell hardness test if the conductivity measurements exceed certain values specified in the service information.

The FAA reviewed Lockheed Martin Aeronautics Company Alert Service Bulletin A382J-53-004, dated March 27, 2023, for Lockheed Model 382J airplanes. This service information specifies procedures for doing a conductivity check on any aft fuselage sloping longeron having P/N 342986-13/-14/-19/-20 and applicable on-condition action. The on-condition action includes doing a Rockwell hardness test if the conductivity measurements exceed certain values specified in the service information.

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 the ADDRESSES section.

This AD requires accomplishing the actions specified in the service information already described, except as discussed under “Differences Between this AD and the Service Information.” This AD also limits the installation of aft fuselage sloping longerons under certain conditions.

The effectivity of Lockheed Martin Aeronautics Company Alert Service Bulletin A382J-53-004, dated March 27, 2023, is limited to Model 382J airplanes, serial numbers 5854, 5889, 5894, and 5956. However, the applicability of this AD includes all Model 382J airplanes. Because the affected aft fuselage sloping longerons are rotable parts, the FAA has determined that these parts could later be installed on airplanes that were initially delivered with acceptable longerons, thereby subjecting those airplanes to the unsafe condition.

Operators should note that, although the Accomplishment Instructions of the referenced service information describe procedures for submitting all conductivity and hardness inspection results to Lockheed to determine further action, the service information does not specify a corrective action. This AD does not require reporting inspection results. Instead this AD requires, depending on the conductivity and hardness test results, repairing using a method approved by the Manager, East Certification Branch, FAA.

In light of the heavy reliance on aviation for intrastate transportation in Alaska, the FAA fully considered the effects of this AD (including costs to be borne by affected operators) from the earliest possible stages of AD development. This AD is based on those considerations, and was developed with regard to minimizing the economic impact on operators to the extent possible, consistent with the safety objectives of this AD. In any event, the Federal Aviation Regulations require operators to correct an unsafe condition identified on an airplane to ensure operation of that airplane in an airworthy condition. The FAA has determined in this case that the requirements are necessary and the indirect costs would be outweighed by the safety benefits of the AD.

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

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies forgoing notice and comment prior to adoption of this rule because numerous understrength aft fuselage sloping longerons have been found on military airplanes of the same type design, and it is likely that understrength longerons are also installed on in-service airplanes. The possibility of both longerons being understrength violates fail-safe design. If both aft fuselage sloping longerons are understrength, the structural integrity of the airplane would be reduced below limit load, which could lead to failure of both longerons. The unsafe condition, if not addressed, could result in loss of the airplane. Also, the compliance time for the required action is shorter than the time necessary for the public to comment and for publication of the final rule. Accordingly, notice and opportunity for prior public comment are impracticable and contrary to the public interest pursuant to 5 U.S.C. 553(b)(3)(B).

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

The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under ADDRESSES . Include Docket No. FAA-2023-1209 and Project Identifier AD-2023-00632-T at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this final rule because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Fred Caplan, Aviation Safety Engineer, FAA, 1701 Columbia Avenue, College Park, GA 30337; phone: 404-474-5507; email: 9-ASO-ATLACO-ADs@faa.gov. Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.

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

The FAA estimates that this AD affects 40 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates the following costs to do any necessary on-condition actions that would be required based on the results of the applicable records review or conductivity check. The FAA has no way of determining the number of aircraft that might need on-condition actions:

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by removing AD 2016-15-01, Amendment 39-18592 (81 FR 47696, July 22, 2016) (AD 2016-15-01). AD 2016-15-01 applied to all Airbus SAS Model A300 series airplanes; Model A300-600 series airplanes; and Model A310 series airplanes. The NPRM published in the Federal Register on March 28, 2023 (88 FR 18263). The NPRM was prompted by the FAA issuing AD 2022-25-12, Amendment 39-22268 (87 FR 78518, December 22, 2022) to terminate AD 2016-15-01 for Model A310 series airplanes, and by the FAA issuing AD 2023-11-02, Amendment 39-22447 (88 FR 36930, June 6, 2023) to terminate AD 2016-15-01 for Model A300-600 series airplanes. The FAA has also determined that the inclusion of the Model A300 series airplanes in the applicability of AD 2016-15-01 was an inadvertent error. The NPRM proposed to remove AD 2016-15-01. The FAA is issuing this AD to remove AD 2016-15-01.

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

The FAA reviewed the relevant data, considered any comments received, and determined that air safety requires adopting this AD as proposed. Except for minor editorial changes, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

This AD removes all actions of AD 2016-15-01. Therefore, the requirements of AD 2016-15-01 are terminated.

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.

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

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

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

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

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

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

The FAA published a final rule in the Federal Register (88 FR 37469, June 8, 2023) for Doc. No. FAA-2023-1254, Class E airspace extending upward from 700 feet above the surface in West Palm Beach, FL. The legal description inadvertently left off the word “[Amended]” following the airspace name. This action corrects this error.

Class E airspace designations are published in Paragraph 6005 of FAA Order JO 7400.11G dated August 19, 2022, and effective September 15, 2022, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in FAA Order JO 7400.11G.

This action amends (14 CFR) part 71 by adding the word “[Amended]” following the Class E airspace extending upward from 700 feet above the surface legal description in West Palm Beach, FL.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends the Class E airspace extending upward from 700 feet above the surface at Hastings Airport, Hastings, MI, to support instrument flight rule operations at this airport.

The FAA published an NPRM for Docket No. FAA-2023-0913 in the Federal Register (88 FR 24496; April 21, 2023) proposing to amend the Class E airspace at Hastings, MI. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022. FAA Order JO 7400.11G is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next update to FAA Order JO 7400.11.

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

This amendment to 14 CFR part 71 modifies the Class E airspace extending upward from 700 feet above the surface to within an 8.2-mile (increased from an 6.4-mile) radius of Hastings Airport, Hastings, MI; removes the Grand Rapids VOR/DME and the associated extension from the airspace legal description; removes the exclusion area as it is not required; adds an extension within 2 miles each side of the 123° bearing from the airport extending from the 8.2-mile radius to 11.3 miles southeast of the airport; adds an extension within 2 miles each side of the 303° bearing from the airport extending from the 8.2-mile radius to 9.9 miles northwest of the airport; and updates the name (previously Hastings Municipal Airport) and geographic coordinates of the airport to coincide with the FAA's aeronautical database.

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

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

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

The FAA published a final rule for Docket No. FAA-2022-1678 in the Federal Register (88 FR 36936; June 6, 2023), amending the Nashville International Airport Class C airspace area and the John C. Tune Class D airspace area. Subsequent to publication, the FAA determined that the words “(when active)” were inadvertently omitted from the preamble discussion and regulatory text that describe the exclusion of the Smyrna Class D airspace from the Nashville Class C airspace area. Since the Smyrna Class D airspace is a part-time designation, it is only excluded from the Class C airspace during the times the Class D is active. This rule corrects the preamble discussion, and the regulatory text by adding “(when active)” following all references to the exclusion of the Smyrna Class D airspace. This complies with aeronautical charting specification requirements to ensure the proper depiction of the airspace on the applicable charts. This action does not alter the actual dimensions of the Class C or Class D airspace areas.

Accordingly, pursuant to the authority delegated to me, the preamble discussion and regulatory text contained in Docket No. FAA-2022-1678, as published in the Federal Register of June 6, 2023 (88 FR 36936), FR Doc. 2023-11909, are corrected as follows:

This rule implements the HAVANA Act of 2021, Public Law 117-46, codified in 22 U.S.C. 2680b(i).

On October 8, 2021, the “Helping American Victims Affected by Neurological Attacks” (HAVANA) Act of 2021 became law (Pub. L. 117-46). In this Act, Congress authorized federal government agencies to compensate affected current employees, former employees, and their dependents for qualifying injuries to the brain after January 1, 2016, in connection with certain hostile or other incidents designated by the Secretary of State. This law requires USAID (and other agencies) to “prescribe regulations” implementing the HAVANA Act not later than 180 days after the effective date of the Act. Section 3 of the HAVANA Act of 2021 removed the requirement in Public Law 116-94, Division J, Title IX, Section 901, that the qualifying injury occurs in “the Republic of Cuba, People's Republic of China, or other foreign country designated by the Secretary of State” for the purpose of making a payment under the HAVANA Act. This interim final rule only implements the HAVANA Act of 2021.

This regulation applies only to current and former employees of the United States Agency for International Development, and dependents of current or former employees, as defined in § 242.2 of this rule.

The rule follows the definitional template provided in the HAVANA Act and its predecessors. The rule defines certain categories of individuals as employees (and thus covered under the Foreign Affairs Manual and the USAID Automated Directives System (ADS)), as well as those who are not considered employees.

For covered employees, the qualifying injury must have occurred on or after January 1, 2016. Similarly, for dependents, the qualifying injury must have occurred on or after January 1, 2016, while the employee was a covered employee of USAID. To make a payment under the Act, this rule defines “covered dependent” as any family member of a USAID current or former employee, without any restriction on where the USAID employee was posted. The rule adopts the Department of State's definition of “eligible family member” in 14 Foreign Affairs Manual (FAM) 511.3 to define “dependent.”

The term “covered employee” includes USAID Foreign Service Officers; USAID Civil Service employees; Appointment Eligible Family Member Adjudicator positions; Expanded Professional Associates Program members; Family Member Appointments; Foreign Service Family Reserve Corps; employees on Limited Non-Career Appointments; Temporary Appointments; students providing volunteer services under U.S.C. 3111; an individual under a Personal Services Contract (Third Country National, Cooperating Country National, and US Personal Services Contracts); or appointed to the position; and USAID's Interns and Fellows.

The term “covered individual” includes any former employee of USAID (including retired or separated employees) who, on or after January 1, 2016, became injured because of a qualifying injury to the brain while they were a covered employee of USAID.

The term “covered dependent” includes any family member of a USAID current or former employee who, on or after January 1, 2016, becomes injured because of a qualifying injury to the brain while the dependent's sponsor was a covered employee of USAID. For purposes of determining whether someone is a covered dependent, the term “family members” includes unmarried children under 21 years of age (or certain other children); parents; sisters and brothers; and spouse. Stepparents and step-siblings are included in the definition.

The definition of “qualifying injury to the brain” is based on current medical practices related to brain injuries. Further, the injury must have occurred in connection with certain hostile acts, including war, terrorist activity, or other incidents designated by the Secretary of State or those authorized by law, and must not have been the result of the willful misconduct of the covered individual. The individual must have: an acute injury to the brain such as, but not limited to, a concussion, penetrating injury, or as the consequence of an event that leads to permanent alterations in brain function as demonstrated by confirming correlative findings on imaging studies (to include computed tomography scan (CT), or magnetic resonance imaging scan (MRI)), or electroencephalogram (EEG); or a medical diagnosis of a traumatic brain injury (TBI) that required active medical treatment for 12 months or more; or acute onset of new persistent, disabling neurologic symptoms as demonstrated by confirming correlative findings on imaging studies (to include CT, MRI), or EEG, or physical exam, or another appropriate testing, and that required active medical treatment for 12 months or more.

This rule adopts the definition developed by the U.S. Department of State in consultation with officials at several prominent medical centers. Based on those inquiries, it appears that the majority of patients who have reported anomalous health incidents were seen by a neurologist certified by the American Board of Psychiatry and Neurology (ABPN), or by a physician certified by the American Board of Physical Medicine and Rehabilitation (ABPMR), the American Osteopathic Board of Neurology and Psychiatry (AOBNP), and the American Osteopathic Board of Physical Medicine and Rehabilitation (AOBPMR). There is no ICD-10 diagnostic code or criteria for AHIs (International Classification of Diseases, Tenth Revision, Clinical Modification (ICD-10-CM)). Because of the varied symptoms and still-nascent understanding of how to test or otherwise screen for AHI impacts, the established standards below will be broadly inclusive of the types of injuries that have been reported by covered individuals to date.

The first component of the definition in § 242.2 “Qualifying injury to the brain” (paragraph (2)(a)) accounts for a variety of observable impacts to an individual, including either a concussion, a penetrating injury, or absent either of those, the ability of an ABPN ABPMR, AOBNP, AOBPMR-certified physician/neurologist to review one of a variety of forms of medical imaging evidence indicating permanent alterations in brain function. The intent of this standard is to ensure there is some documented evidence of impact to the brain, while minimally circumscribing what that impact entails. The second and third components of the definition (paragraphs (2)(b) and (c) of the definition), only one of which must be satisfied, are intended to provide multiple avenues for demonstrating sustained, long-term impact to the individual. This benefit is intended for individuals who experience long-term consequences, potentially including their inability to gainfully work, as a result of their reported possible AHI. Establishing a 12-month threshold of active medical treatment is indicative of a long-term injury. For example, the CDC broadly defines chronic diseases “as conditions that last 1 year or more and require ongoing medical attention or limit activities of daily living or both.”

USAID notes that in adopting this definition, there may be eligible applicants who have suffered kinetic or external, physically-caused injuries to the brain such as the head being struck by an object, the head striking an object, the brain undergoing an acceleration or deceleration movement, or forces generated from events such as a blast or explosion, including penetrating injuries, if their injuries satisfy the other requirements of this rule.

The American Board of Psychiatry and Neurology (ABPN), the American Osteopathic Board of Neurology and Psychiatry (AOBNP), the American Osteopathic Board of Physical Medicine and Rehabilitation (AOBPMR), and the American Board of Physical Medicine and Rehabilitation (ABPMR) certify neurologists and physicians, respectively, maintaining strict professional requirements for membership. As such, USAID endorses these industry certifications as the clinical standard for assessing and diagnosing a qualifying injury to the brain.

The definition of “other incident” is a new onset of physical manifestations that cannot otherwise be explained. USAID notes that it maintains a non-public list of potential incidents based on internal reports it has collected from personnel and their dependents since 2016. While USAID believes this list to be reflective of known incidents to date, USAID will work with any requestor upon submission of the AID 442-1 (“Eligibility Questionnaire for HAVANA Act Payments”) to determine whether or not their alleged incident aligns with USAID's record of “other incidents.”

USAID will communicate with its entire workforce to inform them of the rule, regulations, and process for requesting payment. USAID will work together with potential recipients to provide the necessary documentation to qualify for payment. In the majority of cases, potentially affected personnel are already known to USAID due to internal reporting after individuals experienced what they believe to be an AHI. While USAID believes these efforts will ensure all potential requestors will be able to identify themselves to USAID and begin the process of requesting a payment, the AID 442-1, the form associated with developing the necessary evidence to submit a claim, will also be publicly hosted on USAID's Forms website with instructions on how to contact USAID if a requestor believes they are eligible for a HAVANA Act payment.

Section 242.3 states the conditions required before USAID will consider discretionary payments to former employees and dependents of current or former employees: the qualifying injury to the brain for a former employee must have occurred on or after January 1, 2016, and while the former employee was a covered employee of USAID; and for a dependent, the injury must have occurred on or after January 1, 2016, and while the dependent's sponsor was a covered employee of USAID. The Chief Human Capital Officer must approve any HAVANA Act payment.

Payments will be a one-time, nontaxable, lump sum payment, based on Level III of the Executive Schedule (see 5 U.S.C. 5311 et seq. ). The payment is non-taxable pursuant to 22 U.S.C. 2680b(g). As indicated in § 242.3(e), in determining the amount of the payment, USAID considers (1) the responses on the AID 442-1, “Eligibility Questionnaire for HAVANA Act Payments” and (2) whether the Department of Labor (Workers' Compensation) has determined that the requestor has no reemployment potential, or the Social Security Administration has approved the requestor for Social Security Disability Insurance or Supplemental Security Insurance (SSI) benefits, or the requester's ABPN, AOBNP, ABPMR, or AOBPMR board-certified physician has certified that the individual requires a full-time caregiver for activities of daily living, as defined by the Katz Index of Independence of Daily Living.

The award thresholds are based on Level III of the Senior Executive Schedule (SES). Base will be 75 percent of Level III pay, and Base+ will be 100 percent of Level III pay. If the requestor meets any of the criteria listed in § 242.3(e)(2), the requestor will be eligible to receive a Base+ payment. Requestors whose neurologists or physicians confirm that the definition of “qualifying injury to the brain” has been met but have not met any of the criteria listed in § 242.3(e)(2), will be eligible to receive a Base payment. The criteria established in § 242.3(e)(2) are reflective of USAID's objective of ensuring that the individuals most severely affected by AHIs (as indicated by a lack of reemployment potential, an inability to engage in substantial gainful activity, or the need for a full-time caregiver) receive additional payment.

The specific use of the Department of Labor (DOL) or the Social Security Administration's (SSA) determination is to ensure that both federal employees as well as covered individuals and covered dependents have access to a mechanism for this determination. USAID recognizes that the criteria DOL and SSA use in their disability determinations are distinct, as well as the fact that the procedural timelines for seeking and receiving approval may be different between these agencies. The third option, that the requester's ABPN, AOBNP, ABPMR, or AOBPMR board-certified physician has certified that the individual requires a full-time caregiver for activities of daily living, as defined by the Katz Index of Independence of Daily Living, provides an alternative mechanism for all individuals.

Finally, USAID notes that if a requestor who received a Base payment later meets any of the criteria listed in (e)(2) above, the requestor may apply for an additional payment that will be the difference between the Base and Base+ payment. At the time of writing this rule (2022), a Base payment will be $140,475. A Base+ payment will be $187,300. As the payments are tied to the SES, the amounts will change over time based on increases to the Federal salary schedule. The specific use of Level III of the SES sets the compensation at the maximum annual salary potentially available to most of the federal workforce. While payments under the HAVANA Act may be on top of other leave, disability, or workers' compensation payments the requestor is receiving or may be entitled to receive that also help augment any loss of income, USAID believes this is an appropriate additional payment. USAID also believes this amount is the most it can reasonably compensate each requestor while ensuring available funds for the total amount of requestors it believes will likely receive payments. USAID also notes that because payments are contingent on appropriated funds all payments will be paid out on a first-come, first-served basis.

The United States Agency for International Development will, to the extent possible, consult with the appropriate officials and other federal agencies to identify their current and former covered employees, and current and former dependents who reported an anomalous health incident. This consultation is solely to assist USAID in determining who might be initially eligible for payment under the HAVANA Act.

This rule is being published as an interim final rule. Because this rule is a matter relating to public benefits, it is exempt from the requirements of 5 U.S.C. 553. See 5 U.S.C. 553(a)(2). Since the rule is exempt from the entirety of section 553, pursuant to section 553(a)(2), the provisions of section 553(d) do not apply and the rule could be in effect upon publication. However, USAID has determined on an effective date of August 10, 2023. In addition, it is in the public interest for the rule to have an expeditious effective date. However, USAID is seeking comments from interested persons on the provisions of this Rule and will consider all relevant comments in determining whether additional rulemaking is warranted under the provisions of the HAVANA Act.

The Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) has determined that this rule is not a major rule as defined by 5 U.S.C. 804 for the purposes of Congressional review of agency rulemaking under the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801-808).

This rule will not result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million in any 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 United States Agency for International Development has determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not preempt tribal law. Accordingly, the requirements of Executive Order 13175 do not apply to this rulemaking.

The United States Agency for International Development certifies that this rulemaking will not have an impact on a substantial number of small entities. A regulatory flexibility analysis is not required under the Regulatory Flexibility Act (5 U.S.C. 601, et seq. ).

The United States Agency for International Development has provided this interim final rule to OMB for its review. OIRA has designated this rule as “significant” under Executive Order 12866. Potential causes of AHI are being investigated but remain unknown. Given the nature of the incidents, it is difficult to accurately estimate future incidents and the number of individuals affected. For Fiscal Year (FY) 2022, USAID estimated that it would pay up to $141,000 to one (1) person. For FY 2023, the estimated numbers remain the same at $141,000 for one (1) person.

USAID has also reviewed the rule to ensure its consistency with the regulatory philosophy and principles set forth in Executive Order 12866 and finds that the benefits of the rule (in providing mechanisms for individuals to obtain compensation for certain injuries) outweigh any costs to the public, which are minimal. USAID has also considered this rulemaking considering Executive Order 13563 and affirms that this proposed regulation is consistent with the guidance therein.

The United States Agency for International Development has reviewed this rule in light of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

This rule will not have a substantial direct effect on the states, on the relationships between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. Executive Order 12372, regarding intergovernmental consultation on federal programs and activities, does not apply to this regulation.

This rulemaking is related to an information collection for the Form AID 442-1, “Eligibility Questionnaire for HAVANA Act Patients.”

The Coast Guard will enforce a safety zone in 33 CFR 165.506(h)(4) for the Town of Swansboro Fireworks Display-July 4 Celebration fireworks display from 9 p.m. to 9:45 p.m. on July 3, 2023. This action is being taken to provide for the safety of life on navigable waterways during this event. Our regulation for marine events within the Fifth Coast Guard District, § 165.506(h)(4), specifies the location of the regulated area for the Town of Swansboro Fireworks Display-July 4 Celebration fireworks display at item 15 in table 4 in § 165.506(h)(4), which encompasses portions of the Atlantic Intracoastal Waterway. As reflected in § 165.506, during the enforcement period, if you are the operator of a vessel in the regulated area you must comply with directions from the Captain of the Port (COTP), Sector North Carolina or a designated representative.

In addition to this notification of enforcement in the Federal Register , the Coast Guard plans to provide notification of this enforcement period via the Local Notice to Mariners and Broadcast Notice to Mariners.

Throughout this document wherever “we,” “us,” or “our” is used, we mean EPA.

In our notice of proposed rulemaking published on September 9, 2022 (87 FR 55331), EPA proposed to approve revisions to Montana's regional haze SIP submitted by the State of Montana on March 25, 2020. In this rulemaking, we are taking final action to approve two Montana Board of Environment Review Orders pertaining to regional haze requirements for four facilities  1 into the state's SIP. Specifically, EPA is approving: (1) NO X , SO 2 , and PM BART emission limits along with associated requirements for the Ash Grove Cement Company's Montana City Plant (Montana City) and GCC Three Forks, LLC's Trident Plant (Trident); (2) the PM BART emission limits along with associated requirements for Talen Montana, LLC's Colstrip Steam Electric Station, Units 1 and 2 (Colstrip Units 1 and 2); (3) the determination that Colstrip Units 1 and 2's enforceable shutdown date of July 1, 2022, satisfies the outstanding NO X and SO 2 BART requirements for that facility; and (4) the determination that the outstanding NO X and SO 2 BART requirements for Corette (as well as the remaining PM BART requirements for Corette in EPA's FIP) are satisfied because the source is no longer in operation and has been demolished.

Consistent with our approval of Montana's regional haze SIP for the PM BART emission limits and other requirements for Colstrip Units 1 and 2 and Corette along with the NO X , SO 2 , and PM BART emission limits and other requirements for Montana City and Trident, we are also withdrawing those corresponding portions of the 2012 regional haze FIP found at 40 CFR 52.1396.

In addition, through our approval of the NO X and SO 2 BART determinations for Corette and Colstrip Units 1 and 2, we are addressing the U.S. Court of Appeals for the Ninth Circuit's June 9, 2015 remand of portions of the 2012 regional haze FIP in this action, including EPA's response to a public comment regarding the use of the CALPUFF visibility model in determining BART at Colstrip Units 1 and 2.

The technical rationale for our approval and our response to the remand of portions of the 2012 FIP for Montana are provided in detail in the proposed rule.

We received two comments that were both submitted anonymously during the public comment period. EPA determined that the first comment, which asks where money collected in the form of fees, auctions of emissions rights, and permits will go, does not pertain to and is outside the scope of our proposed action and fails to identify a material issue related to this action that necessitates a response. Below is a summary of the second comment and EPA's response.

Comment: The commenter asserts that NO X, SO 2 , and PM are dangerous chemicals that lead to adverse health effects, including respiratory infections, asthma, lung disease and cancer. Likewise, the commenter claims that these emissions could also cause environmental damage, including acid rain, contributions to the greenhouse effect, and changes to weather patterns associated with climate change. In summary, the commenter argues that these emissions are harmful to people living nearby these facilities and reductions in emissions will protect both human health and the environment.

Response: EPA appreciates the commenter's concerns regarding the negative health impacts of NO X, SO 2 , and PM. While the legal requirements against which we have evaluated Montana's SIP submission for purposes of this action concern remedying visibility impairment, 2 we note this action may also have potential co-benefits through the reductions of NO X , SO 2 , and PM emissions associated with meeting the BART requirements. Therefore, while we appreciate the commenter's concern and support for this action, we take no positions as to these specific statements.

The purpose of this regulatory action is to remove the COVID-19 vaccination and testing requirements established by the Interim Final Rule with Comment Period (IFC), Vaccine and Mask Requirements to Mitigate the Spread of COVID-19 in Head Start Programs, which ACF issued on November 30, 2021 (86 FR 68052), from the Head Start Program Performance Standards (HSPPS). Specifically, this final rule removes the requirement that all Head Start staff, contractors whose activities involve contact with or providing direct services to children and families, and volunteers working in classrooms or directly with children are fully vaccinated for COVID-19. Accordingly, the removal of the vaccine requirement also removes the related “at least weekly testing” requirement that staff who are granted an exemption from the vaccine requirement undergo. These requirements are no longer part of the HSPPS.

Factors that have led ACF to remove these requirements include (1) the expiration of the COVID-19 Public Health Emergency on May 11, 2023 declared by the Secretary of Health and Human Services under the Public Health Service Act and the national emergency concerning COVID-19 ended on April 10, 2023 when the President signed Public Law 118-3, (2) the fact that Head Start programs are required, through a final rule issued on January 6, 2023, to have an evidence-based COVID-19 mitigation policy included in their policies and procedures, and (3) comments received on the IFC (86 FR 68052).

HHS finds good cause for promulgating this final rule with an immediate effective date to promote efficient planning and ease of implementation. A delayed effective date could harm Head Start programs' ability to plan for the upcoming program year, as many Head Start programs use the summer months to recruit and hire staff. Any confusion or uncertainty created by the continued presence of the COVID-19 vaccination and testing requirements within the HSPPS could prevent programs from hiring otherwise qualified staff during the typical hiring season. Further, delays in hiring staff for the upcoming program year ultimately limits the number of children and families served by Head Start. This outcome is contrary to the public interest and subverts the intended purpose of this regulatory action.

This final rule removes the COVID-19 vaccination and testing requirements established on November 30, 2021 through an Interim Final Rule with Comment (IFC), “Vaccine and Mask Requirements To Mitigate the Spread of COVID-19 in Head Start Programs.”  1 In this analysis, we evaluate the impacts of the final rule in comparison to a primary analytic baseline scenario in which these IFC requirements continue over the time horizon of the analysis. We also discuss the impacts in comparison to an alternative baseline scenario of no vaccination and testing requirements.

The final rule will result in fewer COVID-19 tests performed under the testing requirement for individuals granted an exemption from the vaccine requirement. This analysis estimates $16.8 million in cost savings associated with fewer tests performed. The final rule will also result in reduced vaccine uptake among some individuals hired by Head Start programs over the time horizon of this analysis, who would become fully vaccinated under the IFC but who will not become fully vaccinated without the vaccination requirement. We estimate $1.7 million in cost savings associated with fewer new hires becoming fully vaccinated. We also identify foregone benefits in the form of reduced COVID-19 mortality and morbidity risks associated with vaccination. We monetize these mortality risks using a value per statistic life approach and report a primary value of these disbenefits of about $0.7 million. Over a one-year time horizon, we estimate that this final rule will result in about $18.5 million in total cost savings. Subtracting disbenefits from the cost savings, we conclude that this final rule will result in net benefits of about $17.8 million.

These estimates are reported in 2022 dollars and do not depend on the choice of 3% or 7% discount rate. As discussed in greater detail in the full analysis, we acknowledge some uncertainty in these estimates, including that some Head Start programs likely adopted evidence-based COVID-19 mitigation policies that include testing or vaccination strategies.

We have developed a comprehensive regulatory impact analysis that assesses the impacts of the final rule. The full analysis of economic impacts is available Section VIII of this document.

Since its inception in 1965, Head Start has been a leader in supporting children from low-income families in reaching kindergarten healthy and ready to thrive in school and life. The program was founded on research showing that health and wellbeing are pre-requisites to maximum learning and improved short- and long-term outcomes. In fact, OHS identifies health as the foundation of school readiness.

The Head Start Program Performance Standards (HSPPS) require programs to comply with state immunization enrollment and attendance requirements and to work with families to ensure children who are behind on immunizations or other care get on a schedule to catch up (45 CFR 1302.15(e) and 1302.42(b)(1)). Additionally, education, family service, nutrition, and health staff help children learn healthy habits, monitor each child's growth and development, and help parents access needed health care.

It is vitally important that the Head Start program itself is safe for all children, families, and staff. For this reason, the HSPPS specify that the program must ensure Head Start staff do not pose a significant risk of communicable disease (45 CFR 1302.93(a)). Ensuring that children and families can benefit from program services as safely as possible is OHS' highest priority. While this is always important, the COVID-19 pandemic highlighted the need to ensure staff are as protected as possible so that young children are also protected. At the time of the IFC's publication, November 30, 2021, the COVID-19 vaccine was the most effective risk reduction strategy available to avoid severe illness, hospitalization, and death, as well as the most important measure for reducing risk for SARS-CoV-2 transmission  2 for the predominant variants of SARS-CoV-2. Data at the time suggested fully vaccinated staff were at much lower risk of infection and therefore, posed lower transmission risk to the young unvaccinated children in their care. 3 Young children who get the virus can also spread it to others in their homes and communities. Ensuring Head Start staff were fully vaccinated thus had the ancillary benefit of significantly reducing the possibility of the program playing an unwitting part in community spread of SARS-CoV-2.

ACF published an Interim Final Rule with Comment Period (IFC) in the Federal Register on November 30, 2021 (86 FR 68052). ACF issued the IFC on the basis of its authority in Section 641A of the Head Start Act, which allows the Secretary to “modify, as necessary, program performance standards by regulation applicable to Head Start agencies and programs,” including “administrative and financial management standards,” “standards relating to the condition and location of facilities (including indoor air quality assessment standards, where appropriate) for such agencies, and programs,” and “such other standards as the Secretary finds to be appropriate,” 42 U.S.C. 9836a(a)(1)(C), (D), and (E). In developing these modifications, the Secretary included relevant considerations pursuant to section 641A(a)(2) of the Head Start Act, 42 U.S.C. 9836a(a)(2). 4 The Secretary consulted with experts in child health, including pediatricians, a pediatric infectious disease specialist, and the recommendations of the CDC and FDA. 5 6 7 8 The Secretary considered OHS's past experience with the longstanding health and safety Head Start Program Performance Standards that have sought to protect Head Start staff and participants from communicable and contagious diseases. The Secretary also considered the circumstances and challenges typically facing children and families served by Head Start agencies. Challenges considered included the disproportionate effect of COVID-19 on low-income communities served by Head Start agencies and the potential for devastating consequences for children and families of program closures and service interruptions due to SARS-CoV-2 exposures. Based on all these factors, the Secretary found it necessary and appropriate to set health and safety standards for the condition of Head Start facilities that help to reduce transmission of the SARS-CoV-2 and to help avoid severe illness, hospitalization, and death among program participants.

As of Jan. 1, 2022, 9 10 following a decision by the United States District Court for the Northern District of Texas and the Western District of Louisiana, implementation and enforcement of the IFC was preliminarily enjoined in the following 25 states: Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming. Head Start, Early Head Start, and Early Head Start-Child Care Partnership grant recipients in those 25 states were not required to comply with the IFC pending future developments in the litigation. The IFC remained in effect in all other states, the District of Columbia, and U.S. territories.

As of the date of publication of the IFC, children under the age of 5 were not eligible for the COVID-19 vaccine. On June 17, 2022, the U.S. Food and Drug Administration (FDA) authorized the emergency use of the Moderna and Pfizer-BioNTech COVID-19 vaccines to include children 6 months through 5 years of age. While becoming fully vaccinated takes time, and uptake for this cohort has been slow, this remains a critical milestone in the pandemic response. Because vaccinations are now available to children 6 months through 5 years of age, Head Start children are now less vulnerable to the effects of COVID-19. COVID-19 vaccines continue to protect against severe disease, hospitalization, and death in children and adolescents.

On March 31, 2023, the United States District Court for the Northern District of Texas vacated the Vaccine and Mask Requirements to Mitigate the Spread of COVID-19 in Head Start Programs, 86 FR 68052 (Nov. 30, 2021) (the “Interim Final Rule” or “IFC”). That decision took effect on April 7, 2023. Because of this ruling, as of April 7, there is no longer a Head Start requirement for vaccination and testing for Head Start, Early Head Start, and Early Head Start-Child Care Partnership grant recipients in all states, tribes, and territories.

On April 10, 2023, President Biden signed legislation that ended the COVID-19 national emergency declared by the President under the National Emergencies Act. On May 11, 2023, the COVID-19 public health emergency expired.

In enacting the IFC, OHS pointed to the substantial evidence at the time of the efficacy of COVID-19 vaccines and the use of masks in reducing transmission of SARS-CoV-2, offering both personal and communal benefits. The COVID-19 vaccine was the most effective risk reduction strategy available to avoid severe illness, hospitalization, and death, as well as the most important measure for reducing risk for SARS-CoV-2 transmission  11 for the predominant variants of SARS-CoV-2.

The rationale for the removal of the vaccination requirements through this Final Rule is threefold. First, the Public Health Emergency (PHE) declaration came to an end on May 11, 2023 and the national emergency concerning COVID-19 ended on April 10, 2023 when the President signed Public Law 118-3. While vaccination remains one of the most important tools in advancing the health and safety of individuals, this phase of the response is different than it was when ACF required vaccination of Head Start staff. 12 13 14 15 16 As of May 1, 2023, COVID-19 deaths have declined by 97%, and hospitalizations are down nearly 81%, since November 2021. 17 Globally, COVID-19 deaths are at their lowest levels since the start of the pandemic. 18 Additionally, due to the nature of a prolonged pandemic, the majority of Americans have experienced multiple immunization effects—natural and inoculative. Data indicate infection- and vaccine-induced population immunity in the United States was 95% by December 2021. 19 To mitigate the consequences of the pandemic, approximately 675 million COVID-19 vaccine doses were administered, including 55 million updated (bivalent) booster doses. 20 Relatedly, and particularly impactful for the population Head Start programs serve, is the availability and uptake of the COVID-19 vaccine for young children and its inclusion in the CDC's Immunization Schedules. 21 Note that there is waning immunity following vaccination, however, immunization efforts are improving due to greater access to vaccination and more widespread natural immunity. Though COVID-19 is still an ongoing public health issue, it is no longer a societal emergency as it was at the onset of the pandemic and no longer necessitates the same level of federal response. Similarly, the change in pandemic conditions reflected in the termination of the national emergency and public health emergency likewise would make it appropriate to rescind the masking requirement if that requirement were still in effect.

Second, on January 6, 2023, ACF issued a Final Rule (88 FR 993) requiring Head Start grant recipients to have an evidence-based COVID-19 mitigation policy, which considers multiple mitigation strategies such as vaccination, masking, ventilation, testing, and staying home when sick that can be scaled up or down as COVID-19 conditions necessitate. ACF strongly recommends that Head Start programs use vaccines and tests as part of their mitigation policy to reduce the spread of COVID-19 and reduce the likelihood of mortality or morbidity from infection. Head Start programs may choose to include their own requirements to support vaccination efforts, including for example, requiring staff remain up to date on COVID-19 vaccines, sharing information on COVID-19 vaccination with staff and families, and/or partnering with local agencies to increase vaccination access. With this new requirement of an evidence-based COVID-19 mitigation policy in place, Head Start grant recipients are better positioned to respond to future surges of SARS-CoV-2.

Finally, as discussed in detail below, ACF considered public comments on the IFC when making the decision to rescind the vaccine and testing requirements.

The comment period for the IFC was open for 30 days and closed on December 30, 2021. OHS received 2,794 comments, of which 2,690 were unique submissions. Most comments came from individuals, including Head Start directors, other Head Start staff members, Members of Congress, and parents. A smaller subset of comments came from associations on behalf of their membership.

We discussed many of these comments in the Final Rule issued on January 6, 2023, including global comments pertaining to the perceived burden of the vaccine and masking requirements, the reported challenged to enrollment, the implementation timeline, and the open-ended, indefinite nature of the requirements. In Part V. Public Comments Analysis of this Final Rule, we focus on comments that are specific to the vaccination requirement, and the associated “at least weekly” testing requirement for those who are granted an exemption to the vaccination requirement. These comments account for approximately one-quarter of the comments received on the IFC.

In this section, we provide a summary of the comments we received on the IFC related to the vaccine and testing requirements outlined in Section 1302.93(a)(1)-(2) and 1302.94(a)(1)-(2).

Comment: Commenters raised concerns with the lack of the termination date for the vaccine requirements. In the IFC, ACF invited comment on the decision to leave an undetermined end date or set a finite end date, such as 6 months from the effective date of the rule. Programs reported concerns that the indefinite nature of the requirement impedes their ability to update their internal policies, inform staff of expectations, update parents and families, budget for next year and outline expectations for prospective staff and families. Several commenters noted that public health emergency declarations come to an end and objected that the vaccine and testing requirements were “made permanent” by including them in the Head Start Program Performance Standards.

Response: ACF is removing the vaccine requirement in this final rule, which means Head Start programs are no longer determining which staff are exempt from the vaccine requirement and requiring “at least weekly” testing for those granted an exemption unless their program opts to include such requirements under its COVID mitigation policy.

Comment: Commentors raised concerns about providers paid partially with Head Start funds who are subject to the Head Start vaccination requirement but are not required by their employer to be vaccinated. There is concern that school districts and other partners that do not have a masking or vaccination requirement will opt out of partnerships and consider withdrawing contracts. This would result in the loss of services to children and families—a loss in classroom space, transportation options, etc. Similarly, there was also concern that children in Head Start programs situated within partnerships would be unfairly singled out and/or discriminated against by other children in the setting (who are not subject to the mask requirement).

Response: OHS understands this concern and appreciates the comments from those who described the partnerships Head Start programs have established and sustained in their communities over many years. OHS is removing the national vaccine requirement in this final rule and, in doing so, has addressed the concerns from these commenters.

As noted, ACF issued a Final Rule, Mitigating the Spread of COVID-19 in Head Start Programs, on January 6, 2023, that requires Head Start programs to have an evidence-based COVID-19 mitigation policy developed in consultation with the program's Health Services Advisory Committee (HSAC). ACF recommends that Head Start programs use vaccines and tests as part of their mitigation policy to reduce the spread of COVID-19 and reduce the likelihood of mortality or morbidity from infection. Head Start programs may choose to include their own requirements to support vaccination efforts, including for example, requiring staff remain up to date on COVID-19 vaccination, sharing information on COVID-19 vaccination with staff and families, and/or partnering with local agencies to increase vaccination access.

Comment: Commentors were concerned about the impact of these requirements on access to special education services under Individuals with Disabilities Education Act (IDEA). Comments expressed concern that early intervention providers and other professionals providing special education and related services to enrolled children through Part B and C of IDEA, some of whom may not be required to be vaccinated by their employers, are required to be vaccinated under the IFC. There were concerns that there will be a reduction in children's access to early identification, early intervention, and special education services, which could potentially result in children not receiving services to which they are legally entitled under IDEA if Local Education Agencies (LEA) do not have similar vaccination requirements.

Response: OHS has removed the national vaccine requirement in this final rule and therefore, addressed these concerns. Though special education, early intervention, health service providers and other related service providers ( e.g., IDEA Part B/C providers) are neither staff of Head Start programs nor contractors and were never included in the vaccination requirement, the removal of the vaccine requirement should address any concerns about the reduction in services or perceived barriers in services for children in need of early intervention, special education, or related services. Given the critical nature of the services provided through these partnerships, to further address the concerns raised, OHS released an FAQ that made clear these providers were not included in the requirement. Additionally, in partnership with the U.S. Department of Education's Office of Special Education Programs, OHS authored a Dear Colleague Letter and guidance document stating that state and local educational agencies and Head Start programs have responsibilities for implementing IDEA to ensure that children with disabilities enrolled in Head Start programs receive a free appropriate public education in the least restrictive environment.

Comment: Commentors were concerned that those given an exemption were being discriminated against because they were being singled out for testing. Some suggested requiring testing for all, regardless of vaccination status. Others encouraged an opt-out option for all staff with the hopes of fewer staff leaving for employment elsewhere. Conversely, commentors were concerned with the burden imposed on grantees to implement and track weekly testing, especially in rural areas with limited access to tests.

Response: OHS has removed the vaccination requirement and consequently the “at least weekly” testing requirement for those staff exempt from the vaccine requirement. Though OHS did not receive any reports of widespread difficulty accessing tests and/or tracking of test results or indication of discrimination on the basis of being singled out for testing, the rescission of this requirement in the final rule should also address any remaining concerns with regard to testing.

Comment: Some commentors reported that Head Start staff do not have to provide their COVID-19 vaccination status or proof of vaccination status because that information is protected by the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Other commentors raised general concerns that the vaccination requirements should not be mandated by their place of employment. Commentors felt that medical requirements are a violation of employee rights and that vaccines should be a personal choice.

Response: In accordance with HHS guidance, HIPAA does not prohibit any person from asking whether an individual has received a particular vaccine, including COVID-19 vaccines. Since 1998, OHS has required that programs ensure staff do not pose a significant risk of communicable disease (45 CFR 1302.93(a)). At the time of the IFC's publication, the COVID-19 vaccine was an important requirement that reduced transmission of SARS-COV-2. While OHS disagrees with these comments, OHS is no longer requiring all Head Start staff, contractors whose activities involve contact with or providing direct services to children and families, and volunteers working in classrooms or directly with children to be vaccinated for COVID-19.

Section 654 of the Treasury and General Government Appropriations Act of 1999 requires federal agencies to determine whether a policy or regulation may negatively affect family well-being. If the agency determines a policy or regulation negatively affects family well-being, then the agency must prepare an impact assessment addressing seven criteria specified in the law. ACF believes it is not necessary to prepare a family policymaking assessment, see Public Law 105-277, because the action it takes in this final rule will not have any impact on the autonomy or integrity of the family as an institution.

Executive Order 13132 requires federal agencies to consult with state and local government officials if they develop regulatory policies with federalism implications. Federalism is rooted in the belief that issues that are not national in scope or significance are most appropriately addressed by the level of government close to the people. This rule will not have substantial direct impact on the states, on the relationship between the federal government and the states, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this action does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (also known as the Congressional Review Act or CRA) allows Congress to review certain rules issued by federal agencies before the rules take effect. See 5 U.S.C. 801(a). The CRA defines such a rule as one that has resulted, or is likely to result, in (1) an annual effect on the economy of $100 million or more; (2) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or (3) significant adverse effects on competition, employment, investment, productivity, or innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. See 5 U.S.C. 804(2). The Office of Information and Regulatory Affairs in the Office of Management and Budget has determined that this action does not fall within the scope of 5 U.S.C. 804(2).

The Paperwork Reduction Act (PRA) of 1995, 44 U.S.C. 3501 et seq., minimizes government-imposed burden on the public. In keeping with the notion that government information is a valuable asset, it also is intended to improve the practical utility, quality, and clarity of information collected, maintained, and disclosed.

The PRA requires that agencies obtain OMB approval, which includes issuing an OMB number and expiration date, before requesting most types of information from the public. Regulations at 5 CFR part 1320 implemented the provisions of the PRA and §  1320.3 of this part defines a “collection of information,” “information,” and “burden.” PRA defines “information” as any statement or estimate of fact or opinion, regardless of form or format, whether numerical, graphic, or narrative form, and whether oral or maintained on paper, electronic, or other media (5 CFR 1320.3(h)). This includes requests for information to be sent to the government, such as forms, written reports and surveys, recordkeeping requirements, and third-party or public disclosures (5 CFR 1320.3(c)). “Burden” means the total time, effort, or financial resources expended by persons to collect, maintain, or disclose information.

The existing OMB Control Number for this information collection request (ICR) is 0970-0583. This final rule will remove the majority of reporting requirements approved under this OMB Control Number. The only recordkeeping requirement that will remain is the recordkeeping requirement that grant recipients update their program policies and procedures with the evidence-based COVID-19 mitigation policy, which was required in the final rule published on January 6, 2023 (88 FR 993). There are no new recordkeeping activities associated with this final rule.

We have examined the impacts of this final rule under Executive Order 12866, Executive Order 13563, and the Regulatory Flexibility Act (5 U.S.C. 601-612). Executive Orders 12866 and 13563 direct us to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). We believe that this final rule is a significant regulatory action as defined by Executive Order 12866. Thus, this rule has been reviewed by the Office of Information and Regulatory Affairs.

The Regulatory Flexibility Act requires us to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because the impacts to small entities attributable to the final rule are cost savings, this analysis concludes, and the Secretary certifies, that the final rule will not have a significant economic impact on a substantial number of small entities. These impacts are discussed in detail in the Final Small Entity Analysis.

The Unfunded Mandates Reform Act of 1995 (section 202(a)) requires us to prepare a written statement, which includes an assessment of anticipated costs and benefits, before issuing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $177 million, using the most current (2022) Implicit Price Deflator for the Gross Domestic Product. This final rule will not result in expenditures in any year that meet or exceed this amount.

This final rule removes the COVID-19 vaccination and testing requirements established on November 30, 2021 through an Interim Final Rule with Comment (IFC), “Vaccine and Mask Requirements To Mitigate the Spread of COVID-19 in Head Start Programs.”  22 In this analysis, we evaluate the impacts of the final rule in comparison to a primary analytic baseline scenario in which these IFC requirements continue over the time horizon of the analysis. We also discuss the impacts in comparison to an alternative baseline scenario of no vaccination and testing requirements.

The final rule will result in fewer COVID-19 tests performed under the testing requirement for individuals granted an exemption from the vaccine requirement. This analysis estimates $16.8 million in cost savings associated with fewer tests performed. The final rule will also result in reduced vaccine uptake among some individuals hired by Head Start programs over the time horizon of this analysis, who would become fully vaccinated under the IFC but who will not become fully vaccinated without the vaccination requirement. We estimate $1.7 million in cost savings associated with fewer new hires becoming fully vaccinated. We also identify foregone benefits in the form of reduced COVID-19 mortality and morbidity risks associated with vaccination. We monetize these mortality risks using a value per statistic life approach and report a primary value of these disbenefits of about $0.7 million. Over a one-year time horizon, we estimate that this final rule will result in about $18.5 million in total cost savings. Subtracting disbenefits from the cost savings, we conclude that this final rule will result in net benefits of about $17.8 million. These estimates are reported in 2022 dollars and do not depend on the choice of 3% or 7% discount rate. As discussed in greater detail in the full analysis, we acknowledge some uncertainty in these estimates, including that some Head Start programs likely adopted evidence-based COVID-19 mitigation policies that include testing or vaccination strategies.

On November 30, 2021, ACF published an interim final rule with comment period on “Vaccine and Mask Requirements To Mitigate the Spread of COVID-19 in Head Start Programs” (IFC). 23 The IFC added provisions to the Head Start Program Performance Standards to impose three requirements:  24

1. Universal masking, with some noted exceptions, for all individuals two years of age and older when there are two or more individuals in a vehicle owned, leased, or arranged by the Head Start program; when they are indoors in a setting where Head Start services are provided; and, for those not fully vaccinated, outdoors in crowded settings or during activities that involve close contact with other people.

2. Vaccination for COVID-19 for Head Start program staff, certain contractors and volunteers by January 31, 2022.

3. For those granted an exemption to the requirement specified in (2), at least weekly testing for current SARS-CoV-2 infection.

On January 6, 2023, ACF published a final rule on “Mitigating the Spread of COVID-19 in Head Start Programs.”  25 That final rule modified the IFC to remove the requirement for universal masking for all individuals ages 2 and older, and to require that Head Start programs have an evidence-based COVID-19 mitigation policy, developed in consultation with their Health Services Advisory Committee. It did not address the vaccination and testing requirements of the IFC.

In our analysis of this final rule, we adopt a baseline scenario of the requirements of the November 30, 2021 IFC, as modified by the January 6, 2023 final rule. This choice of baseline includes ongoing impacts associated with the testing requirements. It also includes impacts associated with the vaccination requirement; however, these impacts are limited to individuals who will be newly hired over the time horizon of the analysis, since the effective date of the vaccination requirement for existing staff has passed. As discussed in greater detail in the Preamble, the requirements addressed in this final rule are not in effect as a result of a ruling by the United States District Court for the Northern District of Texas. Under an alternative baseline that accounts for this ruling or that compares against a hypothetical future in which the IFC had never been issued, the final rule would result in no benefits or costs.

To estimate the cost savings of removing the testing requirement, we first estimate the number of tests required, and the costs of testing, under our baseline scenario. We follow the general approach of the IFC RIA, with several revisions to the assumptions identified in that analysis. First, the IFC RIA's cost estimates covered 273,000 Head Start staff, consistent with data available at the time that analysis was published and the time horizon it covered. In this RIA, we adopt a lower estimate of 245,700 Head Start staff covered under the baseline scenario. This estimate is consistent with more recent data from Head Start programs, and projections of a 10% reduction in the Head Start workforce over the time horizon of this RIA compared to the period covered in the IFC RIA. 26 Second, the IFC RIA assumed that 5% of Head Start staff would receive an exemption from the vaccine requirement. This likely underestimated the share of staff receiving an exemption, so we increase this estimate to 8.5%. Third, the IFC RIA presented data that 83% Head Start centers were operating in-person or hybrid. Based on that data, the IFC RIA reduced the number of staff requiring testing by 17%, since screening testing would not impact staff at virtual/remote or closed centers. Applying updated data, the RIA for the January 6, 2023 final rule adopted an estimate of 94% of centers operating in-person or hybrid. In this analysis, we assume that 100% of centers operate in-person or hybrid over the time horizon of the analysis.

Combining these assumptions, we estimate that 24,570 staff that are not fully vaccinated would be tested under the baseline scenario. We maintain the assumption of the IFC RIA that each test costs $10. We identify a second cost of time spent testing, adopting an assumption that each test takes 15 minutes to perform. Using a value of time of $29.82 per hour, 27 this is $7.46 in time costs per person tested, or $17.46 in total costs per person tested. Across 24,570 staff tested weekly, this is a weekly cost of testing of $428,869.

Thus, we estimate that the final rule, which removes the testing requirement, would result in $428,869 in weekly cost savings. For the purposes of this analysis, we assume that Head Start programs operate in-person, on average, 9 months per year, or about 39 weeks per year. Multiplying the weekly cost savings by the number of weeks results in $16.8 million in cost savings over one calendar year. We acknowledge several sources of uncertainty in this estimate, each of which may contribute to overestimating these cost savings. First, some Head Start programs likely adopted evidence-based COVID-19 mitigation policies that include testing, thus reducing the impact of this final rule on testing. Second, some individuals that will no longer be required to test weekly will continue to test routinely, or on an ad hoc basis, unrelated to Head Start policies. Third, our baseline scenario assumes `full compliance' with the IFC, which may overstate the quantity of tests that would be performed under the IFC, even absent the ruling by the United States District Court for the Northern District of Texas.

To estimate the cost savings of removing the vaccination requirement, we first estimate the number of individuals who would be newly subject to the vaccination requirement under the baseline scenario over the time horizon of this analysis. Specifically, we estimate the number of individuals who would be hired under the baseline scenario that are not fully vaccinated. To generate this estimate, we adopt an assumption that Head Start programs turnover and hire about 10% of teachers and staff every year, or 24,570 new hires per year. We assume that 20.9% of these new hires are not fully vaccinated, which is consistent with data as of May 10, 2023 that 79.1% of the U.S. population ≥18 years of age have completed a primary series. 28 Thus, over the time horizon of our analysis, we estimate that 5,135 new hires would be subject to the vaccination requirement. Consistent with our approach to estimating testing, we assume that 8.5% of these new hires would receive an exemption from the vaccination requirement. Combining these assumptions, we estimate 4,699 individuals would become fully vaccinated under the baseline scenario.

To monetize the costs associated with the vaccination requirement, we follow the general approach of the IFC RIA, with several revisions to the assumptions identified in that analysis. We retain the IFC RIA's estimates of $80 per person to account for two vaccine doses and the costs of administering those doses. The IFC RIA also included an estimate of 2 hours as the time necessary to receive one COVID-19 vaccine dose, which that analysis describes as intending “to be inclusive of scheduling time; commuting time; time receiving a vaccine dose; waiting time, including after receiving a vaccine dose to watch for any reactions; and recovery time.” For this analysis, we identify an additional cost associated with adverse reactions, adopting an assumption of 5.76 hours in time losses across two doses from a broader study of U.S. employer COVID-19 vaccine mandates, 29 or 2.88 hours per dose. These assumptions sum to 4.88 hours in time costs per dose, or 9.76 hours in time costs for two doses. We again adopt a value of time of $29.82 per hour, for $291.04 in time costs per individual across two doses. Combined with the costs of the vaccine doses and the costs of administering doses, this is $371.04 per individual. Across all 4,699 individuals who would become fully vaccinated under the baseline scenario, this is about $1.7 million in costs associated with the vaccine requirement.

Thus, we estimate that the final rule, which removes the vaccination requirement, would result in about $1.7 million in cost savings over one calendar year. We acknowledge several sources of uncertainty in this estimate. First, some Head Start programs likely adopted evidence-based COVID-19 mitigation policies that include vaccination, thus reducing the impact of this final rule on vaccination. Second, as noted in the IFC RIA, absent the IFC, Head Start teachers were more likely to be fully vaccinated than the general adult population. If individuals hired over the time horizon of this analysis are similarly more likely to be fully vaccinated than the general adult population, this would also reduce the impact of the final rule on vaccination.

To estimate the forgone benefits associated with removing the vaccination requirement, we follow a simplified version of the approach used in the IFC RIA to estimate the health benefits from reductions in COVID-19 mortality attributable to the IFC. In that analysis, we generated forecasts of COVID-19 outcomes for a baseline scenario and an IFC scenario that were built on projections published by the Institute for Health Metrics and Evaluation (IHME). IHME has paused its COVID-19 modeling, and we have not identified a comparable replacement. For the purposes of identifying the magnitude of the forgone benefits from reduced vaccine uptake under the final rule, we consider a simpler model that adopts a static forecast of observed weekly death rates that vary by vaccine status.

CDC data indicate that, at the time the IFC was issued, the weekly death rate among unvaccinated adults was 18.25 deaths per 100,000 people; and for adults who were vaccinated without an updated booster, 1.02 weekly deaths per 100,000 people. 30 At the time this analysis was prepared, the most recent data readily available indicate that the weekly death rate among unvaccinated adults was 1.07 per 100,000 people; and for adults who were vaccinated without an updated booster, 0.21 weekly deaths per 100,000 people. 31 These weekly death rates include adults of all ages, and are largely driven by deaths among people 65 and older, which represent only a small fraction of the Head Start workforce. Since the impacts we are studying accrue to new hires, we focus on weekly death rates for adults between the ages of 30 and 49. For this age group, the weekly death rate among unvaccinated adults was 0.07 deaths per 100,000 people; and for adults who were vaccinated without an updated booster, 0.03 deaths per 100,000 people. 32

To apply these estimates, we add assumptions such that the 4,699 individuals who would become fully vaccinated under the baseline scenario will be hired uniformly over the one-year time horizon and that they would be fully vaccinated for exactly half of the year. Thus, assuming weekly death rates remain constant, we would expect about 0.12 deaths among new hires over one year. 33 Under the final rule, these individuals would not become fully vaccinated, and we would expect about 0.17 deaths among new hires over one year. 34 Thus, we estimate that removing the vaccination requirement would result in mortality risk increases equal to 0.05 statistical lives. We monetize these mortality risk increases associated with lower vaccine uptake using a value per statistical life of $12.4 million  35 and report an estimate of forgone benefits of about $0.61 million. 36

The IFC RIA also contained estimates of morbidity risk reductions associated with the vaccine requirement. As with the mortality estimates, these outcome forecasts were built on projections published by IHME. Lacking comparable projections, we produce an estimate of these forgone benefits by referencing the ratio of the total value of health benefits to the value of mortality benefits estimated in the IFC RIA. Table 25 in the IFC RIA reports a central estimate of the total value of risk reductions of $236.8 million, and $213.4 million as the central estimate of the mortality risk reductions. In that analysis, the total value of the health benefits is about 11% higher than the value of the mortality benefits alone. Thus, in this simplified analysis, we report foregone total benefits associated with removing the vaccination requirement of about $0.67 million, which is about 11% larger than the $0.61 million in mortality benefits estimated above.

We acknowledge several sources of uncertainty in addition to those identified in the previous section. First, the source data on weekly death rates are not adjusted for time since vaccination, which could result in the population estimates of the weekly death rate for vaccinated adults overestimating the weekly death rate for newly vaccinated individuals. If this is the case, then our foregone benefit estimates may be underestimated, all else equal. Second, the relative risk of COVID-19 mortality and morbidity by vaccination status has varied over time and by variant. Moreover, the estimates of the relative risk of COVID-19 mortality by vaccination status used in this analysis serve as a proxy for the effects of vaccination. There may be other factors correlated with vaccination status that also affect mortality and morbidity. Consequently, our approach may overestimate or underestimate the incremental effects of vaccination, which would pass through to our estimates of the forgone benefits of the final rule. Third, COVID-19 deaths and cases have varied over time.

We have examined the economic implications of this Final Rule as required by the Regulatory Flexibility Act. This analysis, as well as other sections in this Regulatory Impact Analysis, serves as the Final Regulatory Flexibility Analysis, as required under the Regulatory Flexibility Act.

The U.S. Small Business Administration (SBA) maintains a Table of Small Business Size Standards Matched to North American Industry Classification System Codes (NAICS). 37 We replicate the SBA's description of this table:

The Northern Pacific Halibut Act of 1982 (Halibut Act), 16 U.S.C. 773-773k, gives the Secretary of Commerce (Secretary) general responsibility for implementing the provisions of the Convention between Canada and the United States for the Preservation of the Halibut Fishery of the North Pacific Ocean and Bering Sea (Halibut Convention), signed at Ottawa, Ontario, on March 2, 1953, as amended by a Protocol Amending the Convention (signed at Washington, DC, on March 29, 1979). The Halibut Act requires that the Secretary shall adopt regulations as may be necessary to carry out the purposes and objectives of the Halibut Convention and Halibut Act. 16 U.S.C. 773c. The Assistant Administrator for Fisheries, National Oceanic and Atmospheric Administration (NOAA), on behalf of the International Pacific Halibut Commission (IPHC), publishes annual management measures governing the Pacific halibut fishery that have been recommended by the IPHC and accepted by the Secretary of State, with concurrence from the Secretary of Commerce. These management measures include coastwide and area-specific mortality limits (also known as allocations and subarea allocations), coastwide season dates, gear restrictions, Pacific halibut size limits for retention, and logbook requirements, among others. The IPHC apportions allocations for the Pacific halibut fishery among regulatory areas: Area 2A (Washington, Oregon, and California), Area 2B (British Columbia), Area 2C (Southeast Alaska), Area 3A (Central Gulf of Alaska), Area 3B (Western Gulf of Alaska), and Area 4 (subdivided into 5 areas, 4A through 4E, in the Bering Sea and Aleutian Islands of Western Alaska).

Additionally, as provided in the Halibut Act, the Regional Fishery Management Councils having authority for the geographic area concerned may develop, and the Secretary of Commerce may implement, regulations governing harvesting privileges among U.S. fishermen in U.S. waters that are in addition to, and not in conflict with, approved IPHC regulations (16 U.S.C. 773c(c)). The Pacific Fishery Management Council (Council) has exercised this authority by developing a catch sharing plan guiding the allocation of halibut across the various sectors and management of fisheries for the IPHC's regulatory Area 2A. At its annual meeting held January 22-27, 2023, the IPHC adopted an Area 2A fishery constant exploitation yield (FCEY) of 1.52 million pounds (689.46 metric tons (mt)) of Pacific halibut. NMFS published this catch limit and fishery allocations in the Federal Register on March 7, 2023 (88 FR 14066), after acceptance by the Secretary of State, with concurrence from the Secretary of Commerce, in accordance with 50 CFR 300.62. The FCEY was derived from the total constant exploitation yield (TCEY) of 1.65 million pounds for Area 2A, which includes commercial discards and bycatch estimates calculated using a formula developed by the IPHC. Based on this FCEY for Area 2A and the allocation framework in the Council's catch sharing plan, the IPHC also adopted a non-tribal directed commercial fishing allocation of 257,819 pounds (116.94 mt).

On December 5, 2022, NMFS published a final rule that established NMFS' authority to issue permits for Area 2A halibut fisheries, as well as a regulatory framework for the area 2A directed commercial fishery (87 FR 74322). NMFS is implementing the following 2023 harvest specifications and management measures for the directed commercial fishery based on that regulatory framework.

Fishing periods are the time during the annual halibut season when directed commercial fishing for Pacific halibut is allowed, and may span multiple days. Through this final rule NMFS is establishing two fishing periods, both of which are 58 hours in length. The first fishing period begins on June 27, 2023, at 8 a.m. and closes on June 29, 2023, at 6 p.m. The second fishing period will occur 2 weeks later, beginning on July 11, 2023, at 8 a.m. and closing on July 13, 2023, at 6 p.m. Following these two fishing periods, if the fishery has not attained nor is projected to have attained the directed commercial allocation, NMFS may determine that subsequent fishing period(s) are necessary to attain the allocation. Any additional fishing period(s) and applicable fishing period limits will be announced in the Federal Register through inseason action.

A fishing period limit, or vessel limit, is the maximum amount of Pacific halibut that may be retained and landed by a vessel during one fishing period. Each vessel may retain no more than the current fishing period limit of Pacific halibut for its vessel class, which is determined by vessel length (see Table 1). This final rule implements directed commercial fishing period limits based on the allocation for the directed commercial fishery in Area 2A and the number of permits issued by vessel size class. Vessel limits are determined by vessel size class based on the number and sizes of the vessels for which permits were issued, as well as historical participation, and are intended to ensure that the Area 2A directed commercial fishery does not exceed the directed commercial allocation, while also providing fair and equitable access across participants to an attainable amount of harvest. The 2023 Pacific halibut directed commercial fishery permit application deadline was February 14, 2023. NMFS received 154 applications across eight vessel size classes (A-H) and used that information in determining the vessel limits. If NMFS determines fishing period(s) in addition to those in this rule is warranted, NMFS will set the fishing period limits equal across all vessel classes. If NMFS determines that the directed commercial fishery has attained its annual allocation or is projected to attain its allocation if additional fishing was to be allowed, the Regional Administrator will take action to close the fishery.

The Area 2A non-tribal directed commercial fishery south of Point Chehalis, WA (46°53.30′ N lat.), will open on June 27 at 8 a.m. and close on June 29 at 6 p.m. and will open July 11 at 8 a.m. and close on July 13 at 6 p.m. The fishery may be adjusted inseason consistent with 50 CFR 300.63.

NMFS published a proposed rule on April 14, 2023 (88 FR 22992), and received no public comments.

Regulations governing the U.S. fisheries for Pacific halibut are developed by the IPHC, the Council, the North Pacific Fishery Management Council, and the Secretary of Commerce. Section 5 of the Halibut Act (16 U.S.C. 773c(c)) allows the Regional Council, having authority for a particular geographical area, to develop regulations governing the allocation and catch of halibut in U.S. Convention waters as long as those regulations do not conflict with IPHC regulations.

This action is exempt from review under E.O. 12866.

NMFS finds good cause to waive the 30-day delay in the date of effectiveness and make the 2023 Area 2A directed commercial fishery specifications ( i.e., fishing periods and vessel limits) in this rule effective in time for the start of the directed commercial Pacific halibut fishery on June 27, 2023, pursuant to 5 U.S.C. 553(d)(3). The fishery specifications in this rule follow the established framework for annual specifications for the IPHC regulatory Area 2A directed commercial fishery at 50 CFR 300.63(e). Additionally, the fishing periods and fishing period catch limits in this rule are consistent with how the fishery has been managed by the IPHC in prior years. This final rule specifies fishery management measures only for the 2023 directed commercial fishery and does not include changes to the codified regulations.

Delaying the effective date of the specifications would be contrary to the public interest. A delay in the effectiveness of these measures for 30 days would result in the fisheries not opening on their intended timelines and on the dates the affected public are expecting—the directed commercial fishery season dates and vessel limits are consistent with how this fishery has been managed and operated in recent years, the framework for which was established through a proposed (87 FR 44318; July 26, 2022) and final rulemaking (87 FR 74322; December 5, 2022), following multiple public meetings of the Council and the IPHC where public comments were accepted. If the commercial fisheries do not open on their intended timeline, there will likely be an opportunity cost for those commercial entities that anticipated these fishing dates, causing economic harm. A delay in the start of the fishing season may risk the ability to attain the directed commercial allocation, potentially affecting the ability for the fisheries to attain the overall Area 2A catch limit set by the IPHC.

Therefore, a delay in effectiveness of the management measures would likely cause economic harm to the commercial fisheries. As a result of the harm to the commercial fishery that could be caused by delaying the effectiveness of these management measures, NMFS finds good cause to waive the 30-day delay in the date of effectiveness and make the specifications effective upon publication in the Federal Register .

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared.

This action does not contain a collection-of-information requirement for purposes of the Paperwork Reduction Act. There are no relevant Federal rules that may duplicate, overlap, or conflict with this action.