Background

In the notice that FAA issued on March 22, 2023, the FAA announced certain relief from May 15, 2023, through September 15, 2023, allowing carriers to return operations at DCA, EWR, JFK, and LGA due to post-pandemic effects on ATC staffing at the N90. 1 N90 provides ATC services to overhead flights in the Northeast corridor and to the New York City area airports, including JFK, LGA, and EWR. The airspace complexity resulting from the close proximity of the major commercial airports serving the New York City region is a significant contributing factor to delays at JFK, LGA, and EWR. The FAA acknowledges that temporary safety mitigations put in place in response to the COVID-19 pandemic impacted controller training. Dedicated training initiatives have been successful in reducing most of the training backlog, with the exception of N90. The staffing shortfalls at N90 limit FAA's ability to provide expeditious services to aircraft operators and their passengers that traverse this airspace.

The relief provided by the FAA during the peak of the summer season has provided stability at the NYC area airports. During the period of May 15, 2023, through June 30, 2023, the total number of scheduled operations at JFK, LGA and EWR, compared to the same period in 2022, was up about one (1) percent while cancellations were down about 40 percent, and Ground Delay Programs (GDPs) and Ground Stops (GSs), were down 20 percent. The FAA continues to monitor performance at N90 and assess options for addressing the staffing shortages. As FAA efforts will not be completed in time to address the near-term anticipated operational impacts in the remainder of the summer 2023 scheduling season, the FAA plans to extend the existing relief until October 28, 2023.

On June 28, 2023, the FAA received a petition from United Airlines, Inc. (United) requesting an extension of the current Summer 2023 limited waiver through the end of the summer 2023 season, October 28, 2023. 2 United stated that, “Historically, slots and timings are set for entire seasons, enhancing predictability, and effecting the baseline for the next corresponding season.”  3 Without an extension of the current waiver, United states that it will “be forced to resume operating all slots at LGA and return to its full baseline level of operations at EWR.” United also stated that the FAA has not transferred responsibility for the Newark radar sector from N90 to the Philadelphia TRACON (PHL).

On August 7, 2023, the FAA received a petition from Airlines for America (A4A) requesting identical relief to that requested by United. In addition, A4A requested the FAA “make public the data relating to progress on hiring and certifying air traffic controllers at critical facilities.”

At JFK and LGA, each slot must be used at least 80 percent of the time. 4 Slots not meeting the minimum usage requirements will be withdrawn. The FAA may waive the 80 percent usage requirement in the event of a highly unusual and unpredictable condition that is beyond the control of the slot-holding air carrier, and which affects carrier operations for a period of five consecutive days or more. 5

At DCA, any slot not used at least 80 percent of the time over a two-month period will also be recalled by the FAA. 6 The FAA may waive this minimum usage requirement in the event of a highly unusual and unpredictable condition that is beyond the control of the slot-holding carrier, and which exists for a period of nine or more days. 7

When deciding historical rights to allocated slots, including whether to grant a waiver of the usage requirement, the FAA seeks to ensure the efficient use of valuable aviation infrastructure and maximize the benefits to both airport users and the traveling public. This minimum usage requirement is expected to accommodate routine cancellations under all but the most unusual circumstances. Carriers proceed at risk if they decide on slot usage in anticipation of the FAA granting a slot usage waiver.

Typically, cancellations due to ATC staffing delays are accounted for by the 20 percent non-utilization allowed under the minimum usage requirement; however, due to the extent of N90 staffing shortfalls and the increase in scheduled operations, the effects of N90 staffing shortfalls are a highly unusual and unpredictable condition beyond the control of carriers that will impact operations through the remainder of the summer 2023 scheduling season. Given this fact, along with the fact that slots and timings are historically set for entire seasons, as United noted, the FAA will waive the minimum slot usage requirements at JFK and LGA, and apply a similar policy of prioritizing returned operations at EWR, to enable scheduling and operational stability during significant NAS impact days through the remainder of the Summer 2023 season.

In addition, because New York-DCA is a high-frequency market for multiple carriers, the FAA recognizes this market is a likely target for carriers to consolidate flights while retaining their network connectivity. If carriers choose to reduce their schedules in the New York-DCA market, the FAA encourages carriers to utilize their DCA slots to operate to other destinations, to the extent that is practical. However, if carriers are unable to utilize their DCA slots elsewhere, it would be necessary to provide relief to DCA slots that are impacted by the reduction in operations at the New York airports.

The FAA previously mentioned in the current Summer 2023 waiver that the FAA was progressing towards a solution to the N90 staffing issues, based on moving responsibility for the Newark, New Jersey radar sector from N90 to the PHL. 8 As FAA continues to evaluate solutions, the FAA finds a basis for granting the petition for relief.

Without an extension of this waiver, carriers would be forced to increase their scheduled operations from September 16, 2023, through October 28, 2023, to meet usage requirements. This waiver will give carriers the ability to reduce operations during the remainder of the summer travel period and reduce corresponding delays which are likely to be exacerbated by the effects of ATC staffing shortfalls on significant NAS impact days.

Carriers should be on notice that N90 staffing shortfalls will not form a sufficient basis for relief for the summer 2023 season beyond this waiver because carriers will have had sufficient opportunity to plan and take remedial action under this waiver policy. The FAA does not foresee providing additional post-hoc relief associated with ATC staffing given the extraordinary relief provided here.

The FAA has determined that the current post-pandemic effects on N90 staffing meet the applicable waiver standards for the remainder of the summer 2023 scheduling season. Given carriers' historical scheduling practices and the experience of the summer 2023 season, the FAA finds it appropriate to extend the limited waiver of minimum slot usage requirements at JFK and LGA to allow carriers to return up to (10) ten percent of their slots at each airport voluntarily as well as impacted operations between DCA and the New York airports from September 16, 2023, through October 28, 2023. In addition, the FAA has determined that the current post-pandemic effects on N90 staffing warrant an extension of the limited policy for prioritizing returned operations at EWR to allow carriers to return (10) ten percent of their approved operating timings voluntarily from September 16, 2023, through October 28, 2023, for purposes of establishing a carrier's operational baseline in the next corresponding season. Carriers wishing to return their slots and approved operating timings voluntarily must do so before September 2, 2023, i.e., at least 14 days prior to, to be eligible for this waiver. If carriers participating in this limited waiver at EWR subsequently operate unapproved flights at that airport, those carriers will forfeit their scheduling preference to an equal number of returned approved operating timings chosen at the FAA's discretion for the subsequent equivalent traffic season. Additionally, any other relief from minimum slot usage requirements or standard level 2 processes already in effect at JFK, LGA, or EWR will factor into the (10) ten percent of allowable returns. In other words, any returns made under a relief policy already in effect when this notice is published will count towards the carrier's 10 percent of allowable returns. Further, the FAA encourages carriers to up-gauge aircraft serving the affected airports to the extent possible to maintain passenger throughput and minimize the impact on consumers.

The FAA will not reallocate the returned slots or approved operating timings at JFK, LGA, or EWR. Carriers are encouraged to utilize their DCA slots in other markets before returning them to the FAA. In the event DCA slots are returned under this waiver, other carriers will have an opportunity to operate the slots on an ad hoc basis without historic precedence to serve markets other than New York. In addition, the FAA acknowledges A4A's request for data relating to air traffic controller staffing at critical facilities, given the breadth of this request and the timing of this notice the agency's response to this request will be forthcoming.

The FAA will treat as used the specific slots returned in accordance with the conditions in this notice for the period from September 16, 2023, through October 28, 2023. The relief is subject to the following conditions:

1. The specific slots and approved operating timings must be returned to the FAA before September 2, 2023.

2. This waiver applies only to slots that have corresponding, scheduled operations during the period of the grant. A carrier returning a slot or approved operating time to FAA for relief under this waiver must identify corresponding scheduled operations. The FAA may validate information against published schedule data prior to issuance of this notice, and other operational data maintained by FAA. Slots or operating times returned without an associated scheduled and canceled operation will not receive relief.

3. Slots or approved operating timings newly allocated for initial use before October 28, 2023, are not eligible for relief.

4. Slots authorized at DCA by the Department of Transportation or FAA exemptions are not eligible for relief.

Background Existing Nuclear Nonproliferation Export Controls

The multilateral Nuclear Suppliers Group (NSG) comprises nuclear supplier countries that seek to contribute to the nonproliferation of nuclear weapons through the implementation of two sets of guidelines for nuclear exports and nuclear-related exports. The first set of NSG guidelines applies to exports of nuclear material, equipment, and technology generally subject to the export licensing jurisdiction of the Nuclear Regulatory Commission (NRC) and the Department of Energy. The second set of NSG guidelines applies to exports of nuclear-related dual-use items, which are subject to the Export Administration Regulations (EAR) (15 CFR parts 730-774), administered by the Department of Commerce, Bureau of Industry and Security (BIS). Such items are listed on the Commerce Control List (CCL) (supplement no. 1 to part 774) and controlled for nuclear nonproliferation column 1 (NP1) reasons (see § 742.3(a)(1)). Items controlled for NP1 reasons require a license to all destinations except NSG member countries listed in Country Group A:4 (see supplement no. 1 to part 740).

In addition to implementing the multilateral NP1 controls, BIS controls certain additional items unilaterally for nuclear nonproliferation reasons. Such items are listed on the CCL and controlled for nuclear nonproliferation column 2 (NP2) reasons (see § 742.3(a)(2)). These items require a license when destined to Country Group D:2 (supplement no. 1 to part 738) countries, and with this rule, to the People's Republic of China (China) or Macau. (Note: Effective December 23, 2020, BIS removed Hong Kong as a separate destination under the EAR; accordingly, licensing requirements for China apply to all exports and reexports to, as well as transfers within, Hong Kong (see 85 FR 83765)). Items controlled for NP2 reasons are listed in Export Control Classification Numbers (ECCNs) 1A290, 1C298, 2A290, 2A291, 2D290, 2E001, 2E002, and 2E290. Items controlled under these ECCNs include, for example, depleted uranium, graphite and deuterium for non-nuclear end use, and generators and other equipment for nuclear plants. Deuterium and graphite for nuclear end use is subject to NRC export licensing jurisdiction pursuant to 10 CFR part 110.

Although China is a NSG member country, it is not listed in Country Group A:4 (supplement no. 1 to part 740). Accordingly, a license is required, as specified on the Commerce Country Chart (supplement no. 1 to part 738), for items controlled for NP1 reasons to China. Likewise, a license is required for items controlled for NP1 reasons to Macau, a special administrative region of China. Prior to this rule, neither China nor Macau were subject to NP2 reasons for control. However, pursuant to § 744.21, some items controlled for NP2 reasons and listed in supplement no. 2 to part 744 require a license when destined to a `military end use' or a `military end user' in China.

In addition to list-based license requirements for nuclear-related dual-use items, BIS implements end use and end user controls to restrict the export, reexport, and transfer (in-country) of items to or within China and Macau for nuclear nonproliferation and certain maritime nuclear propulsion reasons. Pursuant to § 744.2 of the EAR, a license is required for the export, reexport, or transfer (in-country) to or within China and Macau when there is “knowledge” (as that term is defined in part 772 of the EAR) that the item will be used directly or indirectly in nuclear explosive activities, unsafeguarded nuclear activities, or safeguarded or unsafeguarded nuclear fuel cycle activities. In addition, pursuant to § 744.5 of the EAR, a license is required for the export, reexport, or transfer (in-country) to or within China and Macau when there is “knowledge” the item is for use in a maritime nuclear propulsion project. These provisions are not affected by this final rule.

BIS has added entities in China to the Entity List for reasons related to military modernization and nuclear weapons. As one example, on June 5, 2020, BIS added to the Entity List ten entities owned by, operated by, or directly affiliated with the Chinese Academy of Engineering Physics (CAEP), which is the technology complex responsible for the research, development and testing of China's nuclear weapons and has been listed on the Entity List since June 30, 1997. See 85 FR 34495. Also, on August 14, 2019, BIS added four Chinese entities, China General Nuclear Power Group, China General Nuclear Power Corporation (CGNPC), China Nuclear Power Technology Research Institute Co. Ltd., and Suzhou Nuclear Power Research Institute Co. Ltd., because each of these four Chinese entities has engaged in or enabled efforts to acquire advanced U.S. nuclear technology and material for diversion to military uses in China. See 84 FR 40237. The Entity List restricts the export, reexport, or transfer (in-country) of all items subject to the EAR to these entities. License applications involving such entities are reviewed with a presumption of denial.

BIS has continued to take action to address escalating concerns about China's nuclear activities. On October 7, 2022, BIS implemented restrictions on the export of certain advanced computing items to China and imposed additional restrictions on certain entities on the Entity List. Four of those entities were determined to be involved with supercomputers in China that are believed to be used in nuclear explosive activities. See 87 FR 62186, at 62187. The October 7 rule specifically noted a U.S. intelligence community assessment that China “will continue the most rapid expansion and platform diversification of its nuclear arsenal in its history, intending to at least double the size of its nuclear stockpile during the next decade and to field a nuclear triad and is building a larger and increasingly capable nuclear missile force that is more survivable, more diverse, and on higher alert than in the past, including nuclear missile systems designed to manage regional escalation and ensure an intercontinental second-strike capability.” Id. (internal quotations marks omitted). The restrictions imposed in that rule were intended to “protect U.S. national security and foreign policy interests by restricting [China's] access to advanced computing for its military modernization, including nuclear weapons development . . .” Id. at 62186.

According to the United States Department of Defense (DoD) report, Military and Security Developments Involving the People's Republic of China also known as the China Military Power Report, published on November 29, 2022 (see https://www.defense.gov/CMPR/ ), China has a decade-long target to modernize, diversify, and expand its nuclear forces as well as a long-term military-civil fusion strategy. China's continued nuclear expansion and military-civil fusion strategy pose a concern to global and regional stability. In light of China's objectives to build an integrated national strategic system by developing and acquiring advanced dual-use items for military purposes, fusing its defense industrial base with its civilian technology industrial base, building military requirements into civilian infrastructure, and leveraging civilian construction for military purposes, BIS has determined it is necessary to enhance nuclear nonproliferation export controls.

In this final rule, BIS is expanding the scope of nuclear-related export controls applicable to China and Macau. This change is necessary to protect U.S. national security and foreign policy interests by imposing a license requirement to China and Macau on items that could contribute to nuclear activities of concern. These controls are being put in place to further allow the U.S. Government to monitor the export of these items to assure that they are only being used in peaceful activities such as commercial nuclear power generation, medical developments, production of or use in medicine, and non-military related industries. The specific regulatory changes are detailed below.

For purposes of the EAR, this rule does not change the status of Macau; it will continue to be treated as a separate destination from China. According to the U.S. Department of State's fact sheet, U.S. Relations with Macau, Bilateral Relations Fact Sheet of June 1, 2021 (see https://www.state.gov/u-s-relationswith-macau/ ), Macau has been a Special Administrative Region of China since 1999, when it was returned to Chinese sovereignty from Portuguese administration; therefore, its foreign relations and defense are the responsibility of China. China grants Macau limited autonomy in economic and commercial relations. U.S. policy toward Macau is grounded in the U.S. Macau Policy Act of 1999 and reflects U.S. support for Macau's autonomy under the “One Country, Two Systems” framework established in Macau's Basic Law. Because of Macau's position as a Special Administrative Region of China, and the potential risk of diversion of items subject to the EAR from Macau to China, this rule adds Macau as a destination to which a license will be required to prevent the diversion to China of items determined to be critical to protecting U.S. national security and foreign policy interests.

This final rule applies NP2 reasons for control to China and Macau in the Commerce Country Chart (supplement no. 1 to part 738). This imposes a license requirement for NP2 controlled items destined for China or Macau.

As a conforming change, this final rule adds China and Macau to § 742.3(a)(2) to impose the license requirements on the NP2 controlled items. License applications for items controlled for NP2 reasons to China and Macau will be reviewed in accordance with the license review policies set forth in § 742.3(b)(3) and (4) of the EAR. BIS is also using this rule to revise the language of paragraph (a)(2) to ensure its clarity.

Another U.S. Government agency is putting forward a nuclear export-related action as well. The NRC is publishing a separate notice of issuance of an order affecting general licenses for exports of special nuclear material, source material, and deuterium for nuclear end use to China issued under 10 CFR 110.21, 110.22, and 110.24, respectively.

For the changes being made in this final rule, shipments of items removed from eligibility for a License Exception or export, reexport, or transfer (in-country) without a license (NLR) as a result of this regulatory action that were en route aboard a carrier to a port of export, reexport, or transfer (in-country), on August 11, 2023, pursuant to actual orders for export, reexport, or transfer (in-country) to or within a foreign destination, may proceed to that destination under the previous eligibility for a License Exception or export, reexport, or transfer (in-country) without a license (NLR), provided the export, reexport, or transfer (in-country) is completed no later than on September 11, 2023.

On August 13, 2018, the President signed into law the John S. McCain National Defense Authorization Act for Fiscal Year 2019, which included the Export Control Reform Act of 2018 (ECRA), 50 U.S.C. 4801-4852. ECRA provides the legal basis for BIS's principal authorities and serves as the authority under which BIS issues this rule.

1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distribute impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This final rule has been determined to be significant under Executive Order 12866.

2. Notwithstanding any other provision of law, no person may be required to respond to or be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This regulation involves a collection currently approved by OMB under control number 0694-0088, Simplified Network Application Processing System. This collection includes, among other things, license applications, and carries a burden estimate of 29.4 minutes for a manual or electronic submission for a total burden estimate of 31,919 hours. BIS expects an increase of 588 burden hours for this collection.

3. This rule does not contain policies with federalism implications as that term is defined under Executive Order 13132.

4. Pursuant to section 1762 of the Export Control Reform Act of 2018, this action is exempt from the Administrative Procedure Act (5 U.S.C. 553) requirements for notice of proposed rulemaking, opportunity for public participation, and delay in effective date. The Department of Commerce finds that there is good cause under 5 U.S.C. 553(b)(B) to waive the provisions of the Administrative Procedure Act requiring prior notice and the opportunity for public comment because they are unnecessary. This rule does not alter any right, obligation or prohibition that applies to any person under the EAR. Because neither the Administrative Procedure Act nor any other law requires that notice of proposed rulemaking and an opportunity for public comment be given for this rule, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) are not applicable. Accordingly, no Final Regulatory Flexibility Analysis is required and none has been prepared.

Accordingly, the Export Administration Regulations (15 CFR parts 738 and 742) are amended as follows:

Pursuant to section 3 of the Safe Sleep for Babies Act of 2021 (SSBA), Public Law 117-126, 15 U.S.C. 2057e, CPSC is issuing this final rule to reflect, in the Code of Federal Regulations, the statutory ban of crib bumpers that took effect by operation of law on November 12, 2022.

On May 3, 2022, Congress passed the SSBA, which the President signed on May 16, 2022. Section 3(a) of the SSBA requires that, not later than 180 days after enactment, “crib bumpers, regardless of the date of manufacture, shall be considered a banned hazardous product” under section 8 of the Consumer Product Safety Act (CPSA) (15 U.S.C. 2057). 15 U.S.C. 2057e(a). The 180th day after enactment was November 12, 2022.

On July 26, 2022, the Consumer Product Safety Commission (Commission or CPSC) published a notice of proposed rulemaking (NPR) stating the Commission's intention to codify the language in the SSBA requiring that crib bumpers be considered a banned hazardous product under section 8 of the CPSA. 87 FR 44307 (July 26, 2022). CPSC requested and received comments from the public on the proposed rule.

Because the SSBA mandated that crib bumpers shall be considered a banned hazardous product under section 8 of the CPSA, CPSC also terminated a prior proposed rule to establish a consumer product safety standard for crib bumpers/liners pursuant to section 104 of the Consumer Product Safety Improvement Act of 2008. 87 FR 44306 (July 26, 2022).

In this rule, the Commission codifies the SSBA's mandate that crib bumpers are a banned hazardous product, as set forth in this section of this preamble. 1

The Commission is codifying the definition of “crib bumper” used in the SSBA, 15 U.S.C. 2057e(b), which states that “crib bumper”:

(1) Means any material that is intended to cover the sides of a crib to prevent injury to any crib occupant from impacts against the side of a crib or to prevent partial or complete access to any openings in the sides of a crib to prevent a crib occupant from getting any part of the body entrapped in any opening;

(2) Includes a padded crib bumper, a supported and unsupported vinyl bumper guard, and vertical crib slat covers; and

(3) Does not include a non-padded mesh crib liner.

Section 3(a) of the SSBA states that crib bumpers shall be considered a banned hazardous product “not later than 180 days after the enactment of this Act.” The NPR proposed an effective date of November 12, 2022, which was 180 days after enactment of the SSBA. The Administrative Procedure Act (APA) generally requires that the effective date of a rule be at least 30 days after publication of the final rule. 5 U.S.C. 553(d). Because the November 12, 2022, effective date proposed in the NPR has passed, and because commenters supported CPSC implementing the rule expeditiously, the Commission is finalizing this rule with a 30-day effective date, the minimum permitted under the APA. Although the final rule will not be effective until September 13, 2023, the ban of crib bumpers has been in effect since November 12, 2022, pursuant to the SSBA. To reflect that the SSBA took effect on November 12, 2022, 16 CFR 1309.4 notifies the public that the ban of crib bumpers was effective as of November 12, 2022.

The SSBA states that the ban applies to crib bumpers “regardless of the date of manufacture.” Therefore, by statute, crib bumpers manufactured at any time became banned hazardous products as of November 12, 2022.

CPSC received six comments on the NPR during the comment period. 2 After the comment deadline, CPSC received a seventh comment  3 that primarily addressed non-padded mesh crib liners, which are outside the scope of this rule. The seventh comment has been added to the docket for this rulemaking, although it did not address the substance of this rule.

All the commenters supported CPSC codifying the ban of crib bumpers, as stated in the SSBA. None of the commenters suggested any revisions to the language of the proposed rule. Five of the commenters addressed the effective date of this rule. All five agreed with an effective date not later than November 12, 2022; four of these commenters (Johns Hopkins Bloomberg School of Public Health, Kids In Danger (KID), Consumer Reports, and American Academy of Pediatrics) urged CPSC to act as quickly as possible, asserting that an earlier effective date would benefit the public by improving safety. The SSBA's statutory ban of crib bumpers went into effect on November 12, 2022. The final rule will become effective 30 days after it is published, though crib bumpers have been banned pursuant to the SSBA since November 12, 2022. Commenter KID specifically commended CPSC's inclusion of the language from the SSBA stating that crib bumpers are banned regardless of the date of manufacture. The Consumer Federation of America agreed that crib bumpers manufactured before the effective date, as well as those manufactured after the effective date, are banned products.

CPSC sometimes requires testing and certification to demonstrate that a product is not within the scope of a ban. Section 14(a)(2) of the CPSA requires the manufacturer or private labeler of a children's product that is subject to a children's product safety rule to certify that, based on a third-party conformity assessment body's testing, the product complies with the applicable children's product safety rule. 15 U.S.C. 2063(a)(2). A “children's product” is a consumer product “designed or intended primarily for children 12 years of age or younger.” Id. 2052(a)(2). A “children's product safety rule” includes rules under any act enforced by the Commission that “declar[e] a consumer product to be a banned hazardous product or substance.” Id. 206(f)(1). Crib bumpers as defined in the SSBA meet the definition of a children's product for the purpose of Section 14. This final rule, which codifies crib bumpers as a banned hazardous product pursuant to the SSBA, fits the definition of a children's product safety rule under the CPSA. However, because the ban does not leave any crib bumpers in the marketplace, in this instance there is nothing to test. Though commenters provided a variety of ideas regarding testing and certification requirements, emerging products, age grading, and attachment issues for non-padded mesh crib liners, none urged a test for crib bumpers. Although the Commission may consider these issues at a later time, as warranted, CPSC is limiting this rule to codification of the terms of the ban prescribed by the SSBA. Therefore, CPSC has not made any revisions to the proposed rule based on these comments.

For the final rule, the Commission has updated the language proposed in the NPR by replacing the public law citation for the SSBA (Pub. L. 117-126) with the new U.S. Code citation (15 U.S.C. 2057e).

The Commission has also revised the proposed 16 CFR 1309.1, Purpose and scope, to more fully describe the substantive effect of Congress's classification of crib bumpers as banned hazardous products. Section 1309.1 of the final rule makes clear that the rule prohibits not only the sale of banned crib bumpers but also, in accordance with section 19(a)(1) of the CPSA, the offer for sale, manufacture for sale, distribution in commerce, or importation into the United States, of these products. See 15 U.S.C. 2068(a)(1).

The Commission has also revised the proposed 16 CFR 1309.4, Effective date, to clarify that the ban of crib bumpers was effective as of November 12, 2022, pursuant to the SSBA, but that this final rule is effective as of September 13, 2023. The promulgation of this final rule does not change the fact that inclined sleepers have been banned pursuant to the SSBA since November 12, 2022.

Section 3(b)(2)(A) of Executive Order 12988, Civil Justice Reform (Feb. 5, 1996), directs agencies to specify the preemptive effect of any rule. 61 FR 4729 (Feb. 7, 1996). Because the SSBA states that crib bumpers are a banned hazardous product, any state performance standards allowing the sale of crib bumpers, as defined in the SSBA and this rule, would be inconsistent with federal law and therefore preempted by this ban.

The Regulatory Flexibility Act, 5 U.S.C. 601-612, requires that agencies review proposed and final rules for their potential economic impact on small entities, including small businesses, and identify alternatives that may reduce such impact, unless the agency certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. In the NPR, the Commission certified that the final rule will not have a significant economic impact on a substantial number of small entities and received no comment on that issue. 87 FR 44308.

The Commission's regulations at 16 CFR part 1021 address whether the agency must prepare an environmental assessment or an environmental impact statement. Under those regulations, certain categories of CPSC actions that have “little or no potential for affecting the human environment” do not require an environmental assessment or an environmental impact statement. 16 CFR 1021.5(c). This final rule codifying section 3 of the SSBA falls within the categorical exclusion, so no environmental assessment or environmental impact statement is required.

This final rule contains no information collection requirements that would be subject to public comment and review by the Office of Management and Budget under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

The Congressional Review Act (CRA; 5 U.S.C. 801-808) states that, before a rule can take effect, the agency issuing the rule must submit the rule and certain related information to each House of Congress and the Comptroller General, 5 U.S.C. 801(a)(1), and indicate whether the rule is a “major rule” as defined in 5 U.S.C. 804(2). The CRA further states that the Office of Information and Regulatory Affairs (OIRA) determines whether a rule qualifies as a “major rule.” OIRA has determined that this rule is not a “major rule” under the CRA. To comply with the CRA, the Commission will submit the required information to each House of Congress and the Comptroller General.

BSEE is publishing a correction to the final rule, Reorganization of Title 30—Renewable Energy and Alternate Uses of Existing Facilities on the Outer Continental Shelf, which published in the Federal Register on January 31, 2023 [88 FR 6376], to add the OMB control number to BSEE's new § 285.114, Paperwork Reduction Act statements—information collection. Because the OMB control number could not be issued prior to publication of the final rule, BSEE included a placeholder for the control number at the relevant location in the regulation. OMB has since issued the control number, and this correction substitutes that number for the placeholder. Because this correction is clerical in nature only and does not impact the rights or interests of any party under the final rule, BSEE has good cause for not publishing this correction for notification and public comment, since such a publication is unnecessary.

Accordingly, the Bureau of Safety and Environmental Enforcement is making the correcting amendment to 30 CFR part 285 as follows:

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

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable and contrary to the public interest. This safety zone must be established by August 23, 2023, to provide for the safety of life on the navigable waters during a floating lantern festival, and we lack sufficient time to provide a reasonable comment period and then consider those comments before issuing this rule. The NPRM process would delay the establishment of the safety zone until after the date of the floating lantern festival. Vessels inside of the safety zone have the potential of ruining over the lanterns.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be impracticable and contrary to the public interest because action is needed by August 23, 2023, to ensure the safety of the of life on the navigable waters during the floating lantern festival.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port Pittsburgh (COTP) has determined that potential hazards associated with a floating lantern festival on August 23, 2023, will be a safety concern for anyone on the Ohio River from mile markers 90.4 to mile marker 91 from 5 to 9 p.m. The purpose of this rule is to ensure safety of the participant, vessels, and the navigable waters in the safety zone before, during, and after the scheduled event.

This rule establishes a temporary safety zone from 5 until 9 p.m. on August 23, 2023. The safety zone will cover all navigable waters on the Ohio River from mile markers 90.4 to mile marker 91. The duration of the zone is intended to protect personnel, vessels, and the marine environment in the navigable waters during a floating lantern festival.

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

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

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

This regulatory action determination is based on size, location, and duration of the temporary safety zone. This safety zone only impacts a 0.6 mile stretch on the Ohio River for 5 hours on August 23, 2023. Moreover, the Coast Guard will issue Local Notice to Mariners and Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone and the rule allows vessels to seek permission from the COTP to transit the zone.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a temporary safety zone lasting 5 hours on August 23, 2023, on the Ohio River. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

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

Purpose of Program: The purpose of the PIM grant program is to identify, support, and independently evaluate evidence-based and innovative strategies and activities to improve and modernize career and technical education (CTE) and align workforce skills with labor market needs. The Department anticipates using the PIM authority beginning in FY 2023 to award competitive grants to support Career Connected High Schools (CCHS) that will transform public high schools by expanding existing and implementing new strategies and supports to help their students identify and navigate pathways to postsecondary education and career preparation, accrue college credit, pursue in-demand and high-value industry-recognized credentials, and gain direct experience in the workplace through work-based learning.

Program Authority: Section 114(e) of the Carl D. Perkins Career and Technical Education Act of 2006, as amended by the Strengthening Career and Technical Education for the 21st Century Act (Perkins V) (20 U.S.C. 2324).

We published a notice of proposed priorities, requirements, definitions, and selection criteria in the Federal Register on May 16, 2023 (88 FR 31196) (the NPP). The notice contained background information and our rationale for proposing the priorities, requirements, definitions, and selection criteria. As discussed in the Analysis of Comments and Changes section of this document, we made substantive changes to Priorities 1, 2, 3 and 4, Application Requirement 3, Program Requirement 3, and the selection criteria. We also added a new application requirement.

Public Comment: In response to our invitation in the NPP, 17 parties submitted comments. Generally, we do not address technical and other minor changes or suggested changes that the law does not authorize us to make. In addition, we do not address comments that are outside the scope of the NPP.

Analysis of Comments and Changes: An analysis of the comments and of any changes in the proposed priorities, requirements, definitions, and selection criteria since publication of the NPP follows. We group major issues according to subject.

Priority 1—Career-Connected High Schools.

Comments: Sixteen commenters expressed general support for Priority 1. One commenter felt that the activities contemplated under Priority 1 are not innovative because they already are allowable uses of funds under the State formula grant program authorized by Perkins V. That commenter instead recommended giving applicants the discretion to determine their use of grant funds.

Discussion: We appreciate the commenters' support for Priority 1. With respect to the commenter who advocated for allowing grantees to determine how they use grant funds, the Department believes that funding projects that meet the requirements of Priority 1 will be more productive in building evidence and advancing equity than funding a set of projects that lack a clear and consistent focus. While the Department acknowledges that the activities described in Priority 1 are allowable uses of funds under the Perkins V State grant program, to the extent States and LEAs are using Federal funds for these activities, they can be expanded to ensure these activities reach all students.

Priority 1 is innovative because it promotes the implementation of these activities all together, equitably, and at a scale that will benefit all students in a high school. For example, the opportunity to participate in dual or concurrent enrollment programs (as defined in section 3 of Perkins V) is now limited to a small group of students. Among the high school class of 2019, only about one-third of white students, about one-quarter of Asian, Native American, and Hispanic students, and less than a fifth of Black students took one or more dual enrollment courses during their time in high school. 1 Other research has documented that students from low-income backgrounds are significantly underrepresented among dual enrollment course-takers. 2 English learners (ELs) and students with disabilities are also often shut out of dual enrollment opportunities. For example, during the 2017-18 school year, 50 percent of public schools that offered either 11th or 12th grade attended by ELs offered dual enrollment but did not enroll any ELs in such courses, and 37 percent of such schools attended by students with disabilities offered dual enrollment but did not enroll any students with disabilities in such courses. 3 Work-based learning opportunities also are uneven in their availability across the country. 4

The Department's hope is that projects that deliver all four Priority 1 components will be evidence-building pioneers whose results will inspire States and LEAs to implement these activities at scale using their own funds, as well as formula grants from the Department that allow these activities. The Department believes this focused effort will generate greater evidence and improve the outcomes of more students than allowing each applicant to decide how to use limited PIM grant funds.

Changes: None.

Comments: Several commenters recommended that the Department revise Priority 1 to require applicants to address all four components of the priority, rather than only one or more of the components. One commenter urged the Department to amend the priority to require universal student participation in the development of personalized postsecondary and career plans (as defined in this notice), implementation of two of the remaining three components within the grant period, a plan for scaling up all four components during the grant period (or a rationale that describes why this could not be achieved and a timeline for when it would be achieved), and a commitment to develop a plan to sustain these activities after the grant period. Another commenter recommended that the Department revise the priority to require a plan and timeline for implementation of all four components and to amend and weigh the selection criteria so that applicants planning to implement all four components during the grant period are awarded more points by reviewers. Another commenter suggested revising the priority to require applicants to provide a plan for implementing all four components but permit them to focus on implementing only a subset during the grant period. One commenter recommended that the Department align the priority with the keys to college and career success outlined in the Department's Raise the Bar: Unlocking Career Success initiative  5 and require projects to strive for universal student participation in the four components.

Discussion: By structuring Priority 1 to allow applicants to implement one or more of four components of career-connected learning, we preserve our flexibility to adjust the number of required components in future grant competitions. For example, in a year in which limited funds are available for a competition, we could use this flexibility to support grantees in pursuing targeted approaches. At the same time, using the “one or more” language allows us to include the priority in a competition as an absolute priority that requires applicants to include all four components. Program Requirement 5 requires grantees to have a project plan that includes benchmarks for implementing one or more of the four keys to career-connected learning by no later than the end of the fifth year of the project. As with Priority 1, Program Requirement 5 is constructed to give the Department flexibility to specify the number of keys to career-connected learning that must be implemented by the end of the project period. We also support the commenter's suggestion to further align Priority 1 and the Raise the Bar: Unlocking Career Success initiative where possible, and, based on our own review, changed the language in the priority from “pillars” to “keys.”

Changes: We have changed the reference to the four components in Priority 1 from “pillars” to “keys.”

Comments: Several commenters expressed concern that Priority 1 was not adequately focused on promoting equitable student participation in career-connected learning. One commenter recommended that Priority 1 be reoriented to emphasize improving the access and success of students who are members of “special populations”  6 in Perkins V. Another commenter recommended that Priority 1 focus on promoting equity in student access and outcomes for students of color, students from low-income backgrounds, and females, including by expanding access to higher-wage CTE pathways, such as those that prepare students for Science, Technology, Engineering, and Mathematics (STEM) careers, for students from groups that have been historically underrepresented in such programs.

Discussion: The Department appreciates the concerns of the commenters and agrees that inequities in student access and success should remain an important focus of this program. To that end, we note that Priority 4 requires projects to demonstrate that at least 51 percent of the students they will serve will be from low-income families. Moreover, there are other tools available to the Department to make advancing equity a focus of future PIM grant competitions, such as, for example: (a) the equitable access priorities from the Secretary's Supplemental Priorities and Definitions for Discretionary Grants Programs published in the Federal Register on December 10, 2021 (86 FR 70612) (Supplemental Priorities); (b) selection criteria from the Education Department General Administrative Regulations (EDGAR) at 34 CFR 75.210(a) that assess the need for a proposed project; and (c) the EDGAR selection criterion at 34 CFR 75.210(d)(2) that evaluates the quality and sufficiency of a proposed project's strategies for ensuring equal access and treatment for eligible participants who are members of groups that have traditionally been underrepresented based on race, color, national origin, gender, age, or disability.

Changes: None.

Comment: One commenter urged the Department to revise Priority 1 to highlight and encourage applicants to develop and expand access to CTE programs in the construction, transportation, electrification, and manufacturing sectors, which the commenter describes as “skilled trades.” The commenter also recommended adding a definition of “skilled trades education” to make clear that programs that prepare individuals for occupations in these sectors are CTE.

Discussion: We agree with the commenter that addressing the workforce needs of the construction, transportation, electrification, and manufacturing sectors is critically important. Historic investments made through the American Rescue Plan, Bipartisan Infrastructure Law, CHIPS and Science Act, and Inflation Reduction Act, as well as associated private sector investments, will create millions of good-paying jobs rebuilding our infrastructure, supply chains, and manufacturing. 7 We will encourage applicants to consider these new opportunities as they develop college and career pathways under this program. We decline, however, to create a special focus on these sectors (or any others) in Priority 1, in favor of giving applicants the flexibility to design projects that are responsive to the most compelling workforce needs in their communities. Section 114(e)(3)(E) of Perkins V requires each applicant to describe how the programs they will implement reflect the needs of regional, State, or local employers, as demonstrated by the biennial comprehensive needs assessment that Perkins V subrecipients must complete under section 134(c) of that Act. In many communities, these will be jobs in the construction, transportation, electrification, and manufacturing sectors. We also decline to add a definition of “skilled trades education” because we do not consider it necessary to use rulemaking authority to clarify that the programs this term describes are allowable uses of funds under PIM. These programs have long been an important part of CTE, and we affirm that they are eligible uses of PIM funds.

Changes: None.

Comment: One commenter recommended that we require applicants to describe how they will use evidence-based practices, including universal design for learning, 8 in carrying out the activities described in Priority 1 to ensure that teachers, school leaders, and industry partners are adequately trained to implement these activities.

Discussion: We appreciate the commenter's recommendation, but we decline to modify Priority 1 to require the description sought by the commenter because we consider it unnecessary. Because several of the selection criteria assess the likely effectiveness of applicants' proposed strategies to increase student participation and success in career-connected learning, we anticipate that successful applicants will describe in their applications evidence-based practices, such as universal design for learning, and how they will prepare teachers, school leaders, and industry partners to implement them.

Changes: None.

Comments: Two commenters suggested modifications to Priority 1's reference to postsecondary credits earned through dual or concurrent enrollment programs. One commenter recommended that the priority specify that earning 12 postsecondary credits is the goal because there is evidence that the benefits of dual enrollment increase with every postsecondary credit earned, at least up to 12 credits. A second commenter urged the Department to amend the priority to specify that dual or concurrent enrollment courses must be part of a guided pathway that begins in 11th grade, and is aligned with postsecondary pathways and postsecondary programs of study, so that students' participation in dual or concurrent enrollment courses helps them progress toward identified postsecondary degrees or credentials, saving students and their families time and money toward attaining a postsecondary credential.

Discussion: We agree that promoting attainment of at least 12 postsecondary credits through participation in dual or concurrent enrollment programs should be a goal of career-connected high schools because research suggests that the benefits of dual enrollment increase with every postsecondary credit earned, at least up to 12 credits. 9 However, we decline to modify Priority 1 to specify that projects must make this the goal for all students, to preserve flexibility for applicants to design projects that are responsive to the needs of their students and local circumstances and resources. Instead, we are establishing an application requirement that directs applicants to describe how they will seek to increase not only the number of students who earn any postsecondary credits through dual or concurrent enrollment programs but also how they will seek to increase the average number of postsecondary credits earned by students to 12 or more. To measure the progress of grantees in pursuing those goals, we also are establishing an additional reporting requirement that will collect data on the average number of postsecondary credits earned by students.

We agree that participation in dual or concurrent programs should be part of a defined program of study so that students may advance toward their college and career goals and accelerate their attainment of a postsecondary credential. As the commenter suggests, where institutions of higher education (IHEs) are restructuring their programs around broad career pathways, which are sometimes described as “guided pathways,”  10 dual or concurrent programs should be integrated into these efforts so that students and their families have clear program maps showing how each postsecondary course adds up to a postsecondary credential. 11 We decline the commenter's recommendation to specify that these programs must commence in 11th grade, however, to give grantees flexibility in designing these programs of study.

Changes: We added a fifth application requirement that applicants include in their applications a description of how they will seek to increase the proportion of students who earn any postsecondary credits from participation in dual or concurrent enrollment programs, and how, over the 60-month project period, they also will seek to increase the average number of postsecondary credits earned by students to 12 or more. We also revised the program evaluation requirements to require grantees to report annually on the average number of postsecondary credits earned by students through participation in dual or concurrent enrollment programs and the extent to which students attain any postsecondary credits and at least 12 postsecondary credits in a program of study that culminates with an associate, bachelor's, or advanced degree, or completion of a Registered Apprenticeship Program.

We modified the dual or concurrent enrollment component of Priority 1 to specify that these postsecondary credits must be part of a program of study that culminates with an associate, bachelor's, or advanced degree, or completion of a Registered Apprenticeship Program. In addition, we made several conforming changes to Priority 1 to reflect the new program of study requirement. Because programs of study will integrate both secondary and postsecondary content, we modified Priority 1 to indicate that the 5-year plan it requires must not only provide for the alignment of secondary and postsecondary education but also the integration of the two. We also modified Application Requirement 3, which relates to the 5-year plan, to conform with the change to the 5-year plan in Priority 1. Because programs of study may begin earlier than the last two years of high school, we also deleted the reference in Priority 1 to the last two years of high school and now specify that the plan address alignment and integration of high school generally with the first two years of postsecondary education.

Comments: One commenter asked the Department to clarify whether Priority 1's goal of substantially increasing the proportion of students who graduate from high school with postsecondary credits earned from dual or concurrent enrollment programs could be satisfied through student participation in Advanced Placement (AP) courses, expressing the view that students who score highly on AP examinations also receive postsecondary credit. A second commenter supported excluding participation in AP courses from the priority because, the commenter maintained, students rarely receive postsecondary credit even if they receive a high score on the associated examinations.

Discussion: AP courses can be a valuable part of a well-rounded education and may be included in programs of study developed and implemented with grant funds under this program. However, Priority 1 specifically promotes participation in dual or concurrent programs as one of the four keys to college and career success, because such programs enable students to earn postsecondary credits immediately upon completion of each course, and these credits may usually be transferred to other colleges and universities after the student completes high school. 12 Accumulating postsecondary credit through AP courses is less certain. Students must first achieve a designated score, typically 3 or higher on a single examination;  13 in 2022, the percentage of AP test-takers who failed to score 3 or higher ranged from 11.7 percent in Art and Design: Drawing to 56.7 percent in Physics 1. 14 Students then must petition the IHE in which they enroll to seek the postsecondary credit. One study found that most colleges and universities imposed restrictions on the award of credit for AP test scores, such as requiring a score higher than 3, restricting the subject areas in which credit could be awarded, limiting the awarded credit to elective coursework, or limiting the total amount of credit a student could receive. 15 In addition, dual or concurrent programs are typically available for a wider range of disciplines than the 38 subject areas in which there are AP examinations, such as health science, engineering technology, and other postsecondary CTE programs. Dual or concurrent programs also require LEAs and schools to establish close partnerships with the IHEs offering the postsecondary programming, which can benefit students in other ways, such as by improving the alignment of curriculum and the readiness of high school graduates to enter postsecondary education without need for remediation. Further, there is compelling evidence that participation in dual or concurrent programs not only has positive effects on postsecondary outcomes like postsecondary enrollment and degree attainment, but also high school outcomes such as graduation and general academic achievement. 16

Changes: None.

Comments: We received a number of comments on the work-based learning component of Priority 1. Several commenters supported the inclusion of the work-based learning opportunity component in Priority 1. One commenter expressed concern that it would be difficult for grantees to increase participation in work-based learning opportunities for immigrant students who lack documentation that enables them to work in the United States. One commenter supported the requirement that wages or academic credit be provided to students for completing work-based learning opportunities, and encouraged the Department to retain this requirement, because compensated work-based learning experiences result in higher levels of satisfaction for students than those that are uncompensated. Another commenter maintained that the definition of work-based learning opportunity used in the NPP, which is from section 3 of Perkins V, did not include a wide range of relevant experiences and should be enhanced to include applied learning activities that are not implemented in the context of work because they also enable students to contextualize and apply the knowledge and skills taught in classrooms. Another commenter recommended that the work-based learning component of Priority 1 give students multiple means to demonstrate what they have learned through work-based learning and that teachers, work-based learning coordinators, and industry partners be trained to assess student performance through multiple means. One commenter highlighted a noteworthy innovation that offers postsecondary credit and work experience simultaneously through work-based dual credit courses that are co-taught by college faculty and employer supervisors, using the workplace as a learning lab, with at least 20 percent of the course taught at the workplace by an employer instructor. The commenter recommended that this innovation be considered a work-based learning opportunity under Perkins V.

Discussion: We appreciate the commenters' support for the work-based learning component of Priority 1. We understand the concerns of the commenter who described the challenges associated with identifying work-based learning opportunities for students who lack documentation that authorizes them to work in the United States. We note that the definition of work-based learning in Perkins V includes both actual work in authentic workplace settings and also simulated work in classroom environments. Simulated work in classroom environments may be useful in helping these students, as well as those in remote, rural communities develop professional skills. The State of West Virginia, for example, has received considerable attention for the innovative Simulated Workplace program that it has implemented statewide. 17

We appreciate the support of the commenter for the requirement in Priority 1 that students earn academic credit or wages for their participation in work-based learning opportunities.

The Department agrees with the commenter who expressed the view that applied learning activities can be valuable even when they are not implemented in the context of work. While the definition of work-based learning opportunity in Perkins V does not include such applied learning opportunities, the statutory definition of CTE includes applied learning activities and does not require that they be implemented in the context of work. Consequently, projects may carry out the activities the commenter recommends notwithstanding the exclusion of applied learning from the definition of work-based learning in Perkins V.

We agree with the commenter who stressed the importance of training teachers, work-based learning coordinators, and industry partners in assessing student participation in work-based learning opportunities, but we decline to impose this as a Priority 1 requirement to preserve applicants' flexibility to accommodate local circumstances and contexts. The Department may include assessing work-based learning in the technical assistance we intend to provide PIM grantees, however. Similarly, with respect to work-based dual credit courses, we affirm that such courses are consistent with the definition of work-based learning opportunity in Perkins V, but do not believe it is necessary to specify this in Priority 1.

Changes: None.

Comments: A few commenters recommended revisions to Priority 1 relating to the personalized postsecondary and career plans that are developed and updated annually through a system of career guidance and academic counseling and postsecondary education navigation supports. One commenter urged the Department to specify that the personalized postsecondary education and career plan must provide multiple entry points, be accessible to all students, including students with and without disabilities, be co-designed with students, and include ways for students to interact with role models or mentors from similar backgrounds and with similar life experiences. These amendments, the commenter contends, would strengthen this component of Priority 1 by grounding it in research and best practices. Another commenter urged the Department to expand this component of the priority to include comprehensive wraparound supports to promote the successful participation of all students, including tutoring, mentoring, foundational coursework, and payment of any required participation costs. Another commenter stated that Priority 1 would be more effective if it specified that a project must include professional development to train student advisers in delivering career coaching that is culturally competent and informed by accurate and current labor market information. Further, this commenter continued, Priority 1 should require that students participate in a carefully sequenced set of career development activities, such as completing career interest inventories and participating in mock interviews. Another commenter urged the Department to clarify that youth-serving organizations may be sources of career exploration and support for education and career planning assistance, noting an example of a youth-serving organization that provides counseling and career planning to students participating in internships in out-of-school time hours.

Discussion: We appreciate the commenters' support for personalized postsecondary and career plans. With respect to the recommendation that these plans provide multiple entry points and be co-designed with students, we note that Priority 1 already specifies that the plans must be updated annually, and the definition of personalized postsecondary and career plans already requires that these plans be developed with students and, to the greatest extent practicable, the student's family or guardian. All of the activities funded by PIM must meet or be consistent with the requirements of the Individuals with Disabilities Education Act and section 504 of the Rehabilitation Act. For this reason, while we appreciate the commenter's recommendation that we modify the priority to indicate that the plans be accessible to students with disabilities, we believe this is already required. We agree that providing students with mentors is a commendable practice, but we decline to require this in Priority 1 or the definition of personalized postsecondary and career plans, to give applicants flexibility to design a system of career guidance and academic counseling and postsecondary education navigation supports that reflects local needs, assets, and resource limitations. We agree with the commenter who emphasized the importance of providing students with comprehensive wraparound support services, and so we have modified the definition of personalized postsecondary and career plan to indicate that the plan must identify any wraparound supports a student will need to carry out the activities and pursue the goals described in the plan. We also agree with the commenter who recommended that we require students to receive culturally responsive career coaching and advising that is informed by the labor market and delivered by trained personnel, and we have modified Priority 1 accordingly. We decline to amend the definition of personalized postsecondary and career plan to require a specific sequence of career development activities, to preserve applicant flexibility. We affirm that youth-serving organizations can be useful partners in supporting the career exploration and identification of postsecondary education and career goals. We plan to support this work in our technical assistance to applicants and grantees.

Changes: We modified Priority 1 to indicate that the system of career guidance and academic counseling (as defined in section 3(7) of Perkins V) and postsecondary education navigation must include college and career coaching by trained advisors that is culturally responsive and informed by accurate and current labor market information. We modified the definition of personalized postsecondary and career plan to specify that it must identify any comprehensive wraparound support services that a student may need to carry out the activities and pursue the goals described in the plan.

Priority 2—Partnership Applications.

Comments: Several parties expressed support for the focus in Priority 2 on applications that include as partners at least one business or industry representative, a local educational agency (LEA) or other entity eligible to receive assistance under section 131 of Perkins V, and an IHE eligible to receive assistance under section 132 of Perkins V. Three commenters recommended that the Department add other categories of required partners to the priority. One commenter urged the Department to require the inclusion of an entity that would coordinate work-based learning opportunities for the project, contending that such entities were necessary to ensure the work-based learning opportunities were high-quality and successful. Similarly, another commenter recommended including an intermediary organization to facilitate and maintain relationships among schools and LEAs, IHEs, and employers to ensure the quality, consistency, and scale of work-based learning opportunities, better leverage resources, improve data collection, and make the partnership sustainable in the long-term. The same commenter also urged the Department to require the inclusion of local workforce development boards as partners, to leverage resources available under Title I of the Workforce Innovation and Opportunity Act (WIOA) and help educators and students access and interpret labor market information. A third commenter recommended adding as a required partner a local teachers union, school staff union or organization, or a representative organization of teachers, so that teachers understand the work for which students are being prepared and the skills they will need to be successful. Another commenter recommended adding afterschool and summer learning programs to the list of optional partners.

Discussion: We appreciate the commenters' thoughtful support for the partnership priority. We agree that qualified intermediaries (as defined by section 3 of Perkins V) can be helpful partners in coordinating work-based learning opportunities and in facilitating relationships among the partners, and we strongly recommend that prospective applicants consider including a qualified intermediary in partnerships they develop to meet Priority 2 or 3. We decline to require the inclusion of a qualified intermediary in the partnership out of concern that appropriate intermediaries may not be available in every community, but we modified Priority 2 to indicate that qualified intermediaries may be optional partners. We decline to mandate the inclusion of workforce development boards, local unions, or other representatives of teachers and faculty in each partnership, to preserve applicant flexibility to accommodate local circumstances, but we agree that these entities can make useful contributions to a project and should be identified as optional partners. We also agree that afterschool and summer learning programs should be identified as optional partners, because they can make valuable contributions to expanding student access to the keys to career-connected learning.

Changes: We modified Priority 2 to identify as optional partners qualified intermediaries, local teachers unions or school staff unions or other representatives of teachers and faculty, and afterschool and summer learning programs. For consistency, we also made these changes to Priority 3.

Comments: Two commenters recommended that we modify the specifications for some required partner categories. One commenter urged the Department to require including at least two employers in sectors aligned with regional labor market needs, rather than a single business and industry representative, and to specify that these employers must make explicit commitments to participate actively in the project's leadership, assist the grantee in designing career pathways that will prepare students for in-demand skills and include certifications with labor market value, help develop a continuum of work-based learning opportunities, and offer students a wide range of such work-based learning opportunities. Another commenter recommended that the Department clarify that the role of the higher education partner must be carried out by a public or private nonprofit IHE, contending that students educated in CTE programs offered by for-profit institutions of higher education have lower earnings and employment rates and are more likely to default on student loans.

Discussion: We agree that partnerships that include more than one employer likely will be more effective than partnerships with only one employer because, for example, they likely will be able to provide more work-based learning opportunities for students, and we have modified Priority 2 accordingly. While we agree that employers should have significant and meaningful roles in project leadership and implementation, we choose not to elaborate on the nature and extent of the employer's role in Priority 2. Instead, one of the selection criteria included in the NPP and retained in this notice assesses the extent to which employers in the labor market served by the proposed project will be involved in making decisions with respect to the project's implementation and in carrying out its activities. The Department also intends to provide technical assistance to grantees on expanding the number of employer partners and giving these employers meaningful decision-making roles.

We agree with the commenter who recommended that the higher education partner be a public or private non-profit IHE, but decline to amend Priority 2 because it already contains this limitation. Priority 2 requires the IHE partner to be a community or technical college or other IHE eligible to receive assistance under section 132 of Perkins V. Private for-profit institutions of higher education are ineligible for funding under section 132 of Perkins V.

Changes: We have modified Priority 2 to require the partnership to include two or more employers. For consistency, we also made this change to Priority 3.

Comments: One commenter urged the Department to limit the participation of non-profit organizations as optional partners to those with expertise in delivering CTE, contending that projects would have greater impact if non-profit organizations had specialized knowledge about CTE.

Discussion: While we believe that nonprofit organizations, especially those that have experience in CTE delivery, can play a variety of valuable roles in a project's partnership we decline to require all non-profit partners to have this expertise because such expertise is not necessary for a non-profit partner to make meaningful contributions to a project. For example, a non-profit civic organization without expertise in CTE could provide mentors to help students with college and career planning and a non-profit business association without expertise in CTE could recruit local businesses to provide work-based learning opportunities for students.

Changes: None.

Comment: One commenter suggested that the Department require applicants to provide training in the use of evidence-based practices, including universal design for learning, to CTE teachers, school leaders, and industry partners. The commenter believes that this training is necessary and appropriate because CTE teachers often enter the classroom from industry and do not receive the pedagogical training that other teachers receive. The same commenter also recommended that the Department amend the priority to indicate that partnerships may support the design or expansion of research-to-practice partnerships aimed at improving CTE instruction. It urged the Department to provide funding for a national resource center that would provide support to the partnerships, States, and LEAs to improve CTE instruction, address the need for more diversity among the CTE teacher workforce, especially in areas such as manufacturing and biotechnology where there is a shortage of CTE instructors, and promote the use of universal design for learning.

Discussion: As with a similar recommendation made with respect to Priority 1, we decline to modify Priority 2 to require all partnerships to provide training on the use of evidence-based practices, including universal design for learning, to CTE teachers, school leaders, and industry partners. Because several of the selection criteria assess the likely effectiveness of the strategies that applicants propose to implement to increase student participation and success in career-connected learning, we anticipate that successful applicants will describe in their applications evidence-based practices, such as universal design for learning, and how they will prepare teachers, school leaders, and industry partners to implement them.

We agree with the commenter that it is worthwhile for projects to be designed in ways that support collaboration between practitioners and researchers in both conducting research and applying the results to improve practice and student outcomes. We do not believe modifying Priority 2 is necessary to authorize projects to support the kinds of research-to-practice partnerships described by the commenter. Section 114(e)(8) of Perkins V requires each project to independently evaluate the activities carried out using grant funds and to produce an annual report to the Department. Applicants may choose to organize their relationships with the independent evaluators as research-to-practice partnerships.

We appreciate the commenter's recommendation that the Department provide funding for a national resource center that would provide support to the partnerships, States, and LEAs to improve CTE instruction, but such a center is outside the scope of this NFP. We do expect to provide extensive technical assistance to the projects we fund.

Changes: None.

Priority 3—State and Regional Partnerships.

Comments: As recommended for Priority 2, one commenter recommended amending Priority 3 to add as a required partner a local teachers union, school staff union or organization, or a representative organization of teachers, because the commenter believes that it is important for teachers to understand the work for which students are being prepared and the skills they will need to be successful. Similarly, a commenter who recommended making an intermediary organization a required partner under Priority 2 made this same recommendation with respect to Priority 3.

Another commenter urged the Department to permit the State agency partner role in Priority 3 to be filled by agencies other than State educational agencies (SEAs) because some other agencies could make useful contributions to a project. The commenter notes, for example, that some State longitudinal data systems are housed by State agencies that are not SEAs. The commenter also noted that statewide college and career pathway exploration tools in some States are not managed by SEAs or State agencies; in one State, California, they are administered by an LEA and a non-profit organization. For these reasons, the commenter recommended that the Department permit the State agency role to be filled by any entity housing the State longitudinal data system or an entity that provides college and career planning tools to a State or region. Another commenter also highlighted the importance of partnering with the State agency responsible for the State longitudinal data system but recommended that this be the sole State agency eligible to participate in the partnership because, in the commenter's view, this would be the most meaningful way for a State agency to help implement career-connected learning at the regional level. Another party recommended adding as optional partners in Priority 3 statewide youth-serving organizations, such as statewide afterschool networks, because these organizations represent entities that may provide work-based learning opportunities to young people or make other contributions to their career development.

Discussion: We agree that qualified intermediaries and local teachers unions, school staff unions, or other representatives of teachers and faculty can be valuable partners, but we decline to make them required partners in Priority 3, to preserve flexibility for applicants to assemble partnerships that accommodate local circumstances. We agree that State agencies other than the SEA can make important contributions to a partnership and, for that reason, the NPP permitted the State role to be performed by any State agency. We do not agree with the commenter who suggested that the State partner role be limited to the State agency responsible for the statewide longitudinal data system, because we think a variety of State agencies could be helpful to a project. While we understand that regional entities might also provide helpful support to partnerships, we believe Priority 3(a) should focus on State agencies because they have greater resources that can be leveraged by partnerships. However, regional entities like those described by the commenter may be included in the regional partnerships described in Priority 3(b). For the reasons suggested by the commenter, we agree that statewide youth-serving organizations, such as statewide afterschool networks, should be identified as optional partners in Priority 3.

Changes: We modified Priority 3 to identify as optional partners qualified intermediaries, local teachers unions or school staff unions or other representatives of teachers and faculty, and statewide youth-serving organizations, such as statewide afterschool networks.

Priority 4—Serving Students from Families with Low Incomes.

Comments: The Department received numerous comments that support Priority 4, which requires that projects submit a plan and evidence that at least 51 percent of the students to be served by the project will be from low-income families, consistent with the statutory mandate that the Department give priority to projects that will predominantly serve students from families with low incomes. One commenter recommended that applicants specifically address the targeted recruitment, retention, and completion supports they will undertake with respect to students from low-income families as part of the plan they must submit to meet the requirements of Priority 4. Another commenter expressed concern about using eligibility for Pell Grants as a means to establish that postsecondary students who would be served by the project are from low-income families, because many low-income students in States with need-based student financial aid programs are not eligible for Pell Grants where their needs are met by State financial aid.

Discussion: We agree with the first commenter's suggestion concerning the importance of asking applicants to describe their strategies for recruiting and retaining students from low-income backgrounds because these strategies will be key to the applicant's success in meeting the 51 percent requirement. We have revised Priority 4 accordingly. We thank the second commenter for the information about State student financial aid programs and agree that receipt of need-based State financial aid should be a factor that applicants may use to establish that a postsecondary student is from a low-income family. We have modified Priority 4 accordingly.

Changes: Priority 4 has been amended to require applicants to describe the recruitment and retention strategies they will employ to meet the goal that 51 percent or more of students be from low-income families. We also added receipt of need-based State student financial aid as a factor that applicants may use in identifying postsecondary students who are from low-income families.

Priority 5—Rural Communities.

Comments: Several commenters voiced support for Priority 5, which gives priority to an applicant that demonstrates its proposed project will serve students residing in identified rural communities. One party opposed the priority, contending that it was unfair to schools outside rural areas with large enrollments of students from low-income backgrounds and that the Department should not give preference to applicants in particular geographic areas. One commenter that supported the priority recommended that we require an applicant to demonstrate that the project will provide training to CTE teachers, school leaders, and industry leaders in the use of evidence-based practices, including universal design for learning.

Discussion: The Department appreciates the support for the priority, which is intended to facilitate the Department's implementation of a statutory requirement. Section 114(e)(5) of Perkins V directs the Department to award no less than 25 percent of PIM grant funds to projects proposing to fund CTE activities that serve rural communities. Because the priority for projects in rural communities is statutory, the Department cannot omit Priority 5 from the NFP.

We appreciate the recommendation to require applicants to demonstrate that the project will provide training in evidence-based practices, including universal design for learning, but we decline to modify Priority 5 to require this. As we note elsewhere in the NFP, we expect that successful applicants will describe how they will use evidence-based practices, because several of the selection criteria assess the likely effectiveness of their plans to expand student participation in the four keys to career-connected learning.

Changes: None.

Additional Priorities.

Comments: Five commenters encouraged the Department to establish additional priorities. One commenter recommended priorities focused on English learners and individuals with disabilities that would be comparable to Priority 4, because these students, like students from low-income backgrounds, do not have equitable access to dual or concurrent enrollment programs and other components of Priority 1. As an alternative to Priority 1, one party expressed support for a priority for innovative solutions to challenges faced by rural and low-income communities. One commenter recommended two additional priorities, one focused on building employability skills among students because, in the commenter's view, many jobseekers lack such skills, and a second centered on promoting creative literacy projects for middle school students because the commenter believes that cultivating creativity in earlier grades can provide a strong foundation for student success in high school and after graduation. Another commenter recommended that the Department establish an additional priority for projects that will employ innovative approaches to advancing personalized learning, such as changing school schedules or calendars to increase opportunities for career-connected learning and implementing a performance-based accountability system that uses portfolios and capstone projects to assess student mastery of core content. In the commenter's view, rethinking the structure of high school is necessary for college and career pathways to achieve their full potential to improve student academic and career outcomes. A fifth commenter urged the Department to create an additional priority that would give preference to applications from States that have taken or intend to take advantage of the opportunity WIOA offers to submit a Combined State Plan that includes the Perkins V State formula grant program, as well as the core education and workforce development programs authorized by WIOA. 18 The commenter views this opportunity as a means of creating a comprehensive and integrated approach to education and workforce development programs.

Discussion: We choose not to use rulemaking to establish separate priorities focused on English learners and individuals with disabilities that would be comparable to Priority 4 because the Department has the discretion in the application process to focus applicants on improving access to the four keys by these two groups of students by using the equitable access priorities from the Supplemental Priorities. We agree with the commenter about the importance of strengthening the employability skills of young people, but we decline to establish a separate priority for projects with this focus because we consider it unnecessary. Priority 1 promotes the increased participation of students in work-based learning opportunities that will help students acquire the employability skills that the commenter stresses are critical to success in the labor market. We do not agree with the commenter who recommended establishing a priority for projects that provide instruction in creative literacy for middle school students because it would result in projects that would be narrowly focused on a single strategy. We believe that projects that incorporate multiple strategies, such as those that would meet Priority 1, are a more appropriate use of limited PIM funds. With respect to the commenter who suggested replacing Priority 1 with a priority for innovative solutions to challenges faced by rural and low-income communities, as noted elsewhere in the NFP, we believe that Priority 1 is innovative and will result in a more productive use of limited PIM grant funds than giving applicants the discretion to decide how they wish to use these resources. We support the goals of the commenter who recommended that the Department establish an additional priority for projects that will employ innovative approaches to advancing personalized learning, such as changing school schedules or calendars, and agree that traditional high school structures may pose barriers to expanding career-connected learning. For that reason, we anticipate that successful applicants will employ innovative approaches to personalized learning in their projects, making the establishment of a separate priority unnecessary. We also decline to establish an additional priority for projects submitted by applicants in States that include the Perkins V State formula grant program in a Combined State Plan under WIOA because this decision is made by States and is outside the control of eligible applicants.

Changes: None.

Program Requirements.

Program Requirement 1—Matching Contributions.

Comment: One commenter recommended permitting applicants to meet the statutory matching requirement with Federal funds, noting that this is permissible in the Education Innovation and Research program, which is similar to PIM. The commenter stated that permitting the match to be provided from other Federal program funds could promote greater alignment of Federal investments in education.

Discussion: We appreciate the commenter's recommendation and understand how this could be a useful tool to strengthen the alignment of Federal education and workforce funding to support career-connected learning in communities. However, we are unable to make this change because section 114(e)(2)(A) of Perkins V specifies that the match must be provided from non-Federal sources.

Changes: None.

Program Requirement 2—Programs of Study.

Comments: One commenter supported Program Requirement 2, which would require alignment of the secondary portion of programs of study offered by each project with the entrance requirements and college credit criteria for public IHEs in the State, and mandate that the postsecondary portion of these programs of study culminate in certain degrees or lead seamlessly to and through a Registered Apprenticeship program. The commenter supported alignment of the secondary portion of programs of study with standards and criteria for accessing college-credit courses because student placement in developmental or remedial coursework is a barrier to timely completion of postsecondary credentials. The commenter also expressed the view that industry-recognized credentials should not be the terminal credential in a program of study because the earnings associated with these credentials vary greatly.

One party expressed opposition to Program Requirement 2, stating that the requirements for programs of study were not innovative because programs of study were included in Perkins V and the predecessor to Perkins V (the Carl D. Perkins Career and Technical Education Act of 2006) and were based on Tech Prep programs that had been authorized during the 1990s.

Discussion: We appreciate the first commenter's support for Program Requirement 2. While the second commenter is correct that Perkins V and its predecessor statute required subrecipients to offer at least one program of study (as defined by section 3 of Perkins V), Program Requirement 2 is important because a 2016-2017 survey of LEAs by the National Center for Education Statistics found that only about a third of LEAs reported that all of their CTE programs were structured as pathways aligned with related postsecondary programs. 19 In the Tech Prep program referenced by the commenter, only about 10 percent of consortia that received Tech Prep funds offered structured, comprehensive programs of study. 20

Changes: None.

Comments: None.

Discussion: After further review, we made a clarifying edit to Program Requirement 2 to make it consistent with the statutory definition of dual or concurrent enrollment program in Perkins V, by indicating that dual or concurrent enrollment courses must confer postsecondary credit.

Changes: We modified Program Requirement 2 to indicate that dual or concurrent enrollment courses must confer postsecondary credit, consistent with the statutory definition of dual or concurrent enrollment programs.

Program Requirement 3—Independent Evaluation.

Comment: One commenter stated that the common performance indicators described in Program Requirement 3 on the extent of student participation in career-connected learning did not require grantees to provide information on participation in and completion of career-connected learning activities by students from low-income backgrounds, students of color, students with disabilities, English learners, and other underserved students. The commenter urged the Department to require grantees to provide these data. Additionally, the commenter recommended that the Department collect data on the extent to which student participation in career-connected learning activities and the college and career pathways supported by the project reflected the demographic characteristics of the overall student population, maintaining that this information is important to assessing the success of each project.

Discussion: We agree with the commenter on the importance of collecting and reporting data on student participation in the four keys to career-connected learning and on student outcomes, and we share the commenter's view that meaningful disaggregated data are critical to evaluating the success of each project. We note that Program Requirement 3 already requires the independent evaluation to report annually on common performance indicators, including student completion of career-connected learning activities, such as earning postsecondary credits through participation in dual or concurrent enrollment programs, and Program Requirement 3 requires disaggregation of those data for the subgroups of students described in section 1111I(2)(B) of the ESEA, namely students from major racial and ethnic groups, and students who are members of special populations (as defined by section 3 of Perkins V), which include students with disabilities, students from low-income families, and English learners, among others.

In addition, section 114(e)(8) of Perkins V requires PIM grantees to report annually on student outcomes using the performance indicators established by section 113 of Perkins V for the State formula grant program, disaggregated by the student subgroups described in section 1111(c)(2)(B) of ESEA, special population status, and, as appropriate, each CTE program and program of study.

The commenter's recommendation to collect data on the extent to which student participation in learning activities and career pathways supported by the project reflect the demographic characteristics of the overall student population raises important issues that we think merit revising Program Requirement 3, including by requiring the disaggregation of student participation and outcome data by sex and requiring that the evaluation report annually on the extent to which student participation in each CTE program or program of study reflects the demographics of the school (including major racial and ethnic groups, sex, and special population status). These additional data will give the Department a fuller picture of the performance of each project.

Changes: We have modified Program Requirement 3 to require the independent evaluation to disaggregate by sex the data it will collect and report on student participation in and completion of career-connected learning activities, as well as student outcomes measured by the performance indicators established by section 113 of Perkins V for the State formula grant program. We also have added a new paragraph that requires the independent evaluation to report annually on the extent to which CTE participants (as defined by section 3 of Perkins V) and CTE concentrators (as defined by section 3 of Perkins V) in each CTE program or program of study reflect the demographics of the school (including sex, major racial and ethnic groups, and special population status).

Other Requirements.

Comments: One commenter urged the Department to recommend or require grantees to report information on credentials earned by students using the Credential Transparency Description Language created by Credential Engine, an openly licensed schema devised to describe and provide information about credentials, because doing so would promote transparency and facilitate greater understanding of a credential, how it was earned, the entity that awarded it, and the skills for which it was awarded.

Discussion: We thank the commenter for the suggestion. In its instructions on performance reporting to grantees, the Department expects to recommend that grantees consider using the Credential Transparency Description Language when they report information on credentials, but we decline to establish this as a requirement in the NFP because we believe it is more appropriately addressed through sub-regulatory guidance.

Changes: None.

Comment: One commenter recommended requiring grantees to set aside 10 percent of their grant funds for activities carried out in the middle grades (as defined by section 3 of Perkins V) or to make such activities an allowable use of funds so that students are aware of and ready for college and career pathway opportunities when they enroll in high school.

Discussion: While we agree with the commenter that career development and other activities in the middle grades can be helpful to students in clarifying their college and career goals and helping them to make well-informed choices in high school, we do not agree that 10 percent of grant funds should be reserved for these purposes. The goals for career-connected high schools set out in Priority 1 are ambitious and will likely require grantees to use the preponderance of grant funds to achieve them. We affirm, however, that, consistent with section 215 of Perkins V, middle grade activities may be an allowable use of funds.

Changes: None.

Application Requirement-4—Articulation and Credit Transfer Agreements.

Comments: One commenter expressed support for Application Requirement 4, which would require applicants to include in their applications an assurance that, by no later than the end of the first year of the project, LEAs and participating IHEs execute articulation or credit transfer agreements ensuring that postsecondary credits earned by students in dual or concurrent enrollment programs supported by the project will be accepted for transfer at each participating IHE and count toward the requirements for earning culminating postsecondary credentials for the programs of study offered to students through the project.

One commenter opposed Application Requirement 4, asserting that it was not innovative because programs of study and articulation agreements were included in Perkins V, as well as the predecessor to Perkins V (the Carl D. Perkins Career and Technical Education Act of 2006), and were based on Tech Prep programs that had been authorized during the 1990s.

Discussion: We appreciate the support for Application Requirement 4. With respect to the commenter concerned about the extent to which Application Requirement 4 is innovative, we note that, while articulation agreements have been addressed in Federal CTE legislation for many years, there remains considerable work to do to ensure that that dual and concurrent enrollment programs deliver on their promises and students are able to use the postsecondary credits they earn when they enroll in postsecondary education. A 2022 analysis of dual enrollment and other early postsecondary opportunities in CTE found that most States reported having statewide articulation agreements for some CTE courses but that these agreements were often not required or did not cover all CTE courses that were represented to students as offering postsecondary credits. As a result, postsecondary credits may or may not be available to all students when they enroll in higher education. 21 Application Requirement 4 is intended to ensure that postsecondary credits will be available to all students.

Changes: None.

Definitions.

Definition—Personalized postsecondary educational and career plan.

Comment: One commenter recommended amending the definition of “personalized postsecondary educational and career plan” to specify that its development must include completing informational interviews, job shadowing opportunities, and mock interviews because these activities would be helpful to students in identifying postsecondary educational and career goals.

Discussion: We agree that informational interviews, job shadowing opportunities, and mock interviews can be helpful to students in identifying postsecondary educational and career goals, but we decline to modify the definition of “personalized postsecondary educational and career plan” to mandate their inclusion, to preserve flexibility for applicants to design career guidance and academic counseling programs and work-based learning opportunities that reflect local circumstances, assets, and resource limitations.

Change: None.

Definitions of Additional Terms.

Comments: One commenter recommended that the Department add a definition of “career-connected high school” that specifies that such a school provides all students with each of the four components described in Priority 1, including participation in a comprehensive postsecondary education and career navigation system, opportunities to acquire at least 12 postsecondary credits through dual or concurrent enrollment programs, participation in work-based learning, and attainment of an in-demand and high-value industry-recognized credential. The commenter contended that adding such a definition would underscore the Department's intention to support projects that provide all four components to students.

Discussion: As discussed elsewhere in this notice, Priority 1 was constructed to require applicants to implement one or more of four components of career-connected learning, to give the Department flexibility to determine the number of components to include in each grant competition. We decline to add a definition of career-connected high school to preserve this flexibility.

Change: None.

Selection Criteria.

Selection Criteria—(a) Significance.

Comment: One commenter recommended that selection criterion (a)(2), which evaluates the extent to which a project will serve students who are predominantly from low-income families, be revised to incorporate provisions of Priority 4. Specifically, the commenter urged the Department to specify that, consistent with Priority 4, reviewers must evaluate the extent to which the applicant provides evidence that 51 percent of the students who will be served will be from low-income families.

Discussion: We agree with the commenter that this selection criterion should be fully aligned with Priority 4, as it is our intent to establish this selection criterion so that it would be available to assess the extent to which a project meets Priority 4.

Change: We have modified selection criterion (a)(2) to specify that, consistent with Priority 4, reviewers must evaluate the extent to which the applicant provides evidence that at least 51 percent of the students who will be served will be from low-income families.

Selection Criteria—(b) Quality of Project Design.

Comment: One commenter recommended amending selection criterion (b)(1), which evaluates the extent to which the proposed project is likely to be effective in increasing successful participation in dual or concurrent enrollment programs, to specify that reviewers evaluate the extent to which the proposed project is likely to be effective in increasing the acquisition of at least 12 postsecondary credits. The commenter noted that the NPP stated that the benefits of dual enrollment can increase with every postsecondary credit earned, at least up to 10 to 12 credits.

Discussion: As discussed elsewhere in this notice in our response to a similar comment about Priority 1, we agree that career-connected high schools should encourage the attainment of 12 postsecondary credits, but we decline to mandate this be the goal for all students to preserve the flexibility of applicants to design projects that are responsive to local needs, circumstances, and resources.

Changes: None.

Selection Criteria—Additional Recommendations.

Comment: One commenter recommended that the Department add two selection criteria, one that would assess the extent to which the proposed project will integrate and provide students with each of the components of career-connected learning described in Priority 1, and a second that would assess the likelihood that the proposed project will ensure that postsecondary credits earned by students will be accepted for transfer and count toward the requirements for earning culminating postsecondary credentials for programs of study offered to students through the project at all public institutions of higher education in the state, as demonstrated through statewide articulation or credit transfer agreements. The commenter indicated that the former suggested criterion would incentivize grantees to develop projects that include all four keys to career-connected learning and assess the extent to which a project would provide students with a transformative experience that could only be accomplished by implementing the four keys all together. The commenter stated that the latter recommended criterion would be beneficial because it would maximize the utility and portability of the postsecondary credits earned by students through the project, enabling them to be used not only at a local IHE, but at any public IHE in the State.

Discussion: The Department appreciates the suggestions. We decline to add a selection criterion that assesses the extent to which an applicant will implement all four keys, because the Department does not anticipate giving applicants the discretion to choose the number of keys they will implement by the end of the fifth year of the project, and the Department also seeks to maintain its discretion to determine whether to make Priority 1 an absolute or competitive preference priority.

We agree with the commenter that statewide articulation agreements or other means of assuring that postsecondary credits earned through dual or concurrent enrollment programs are portable and will be accepted by all public IHEs in a State are optimal and in the best interests of students. As a practical matter, however, we are concerned that it will be difficult for grantees to secure articulation or credit transfer agreements with every public IHE in the State during the first year of the project. This will not be an issue for applicants in those States that have established effective and comprehensive statewide articulation agreements, but we do not wish to put applicants in other States at a competitive disadvantage because State actions are outside their control. Consequently, we decline to add the second recommended selection criterion.

We agree, however, that postsecondary credits that are accepted by multiple IHEs in a state are more valuable to students than credits accepted only by one institution. Consequently, we are revising Application Requirement 4 to make clear that the articulation or credit transfer agreements that LEAs and IHEs must execute may also include IHEs that are not participating in the project, if applicable. We make this change so that the requirement does not inadvertently discourage projects from entering into agreements with IHEs that are not participating in the project.

Changes: We modified Application Requirement 4 to indicate that the articulation and credit transfer agreements may include IHEs that are not participating in the project, if applicable.

This notice contains five final priorities. We may apply one or more of these priorities for a PIM competition in FY 2023 or in subsequent years.

Final Priorities:

Final Priority 1—Career-Connected High Schools.

To meet this priority, an applicant must submit a detailed 5-year planning and implementation plan to increase the alignment and integration of high school and the first 2 years of postsecondary education in one or more high schools that describes the extent to which the applicant is currently implementing career-connected learning, with supporting data if available; and describes how the applicant will substantially increase the proportion of students who graduate from high school with one or more of the following four keys of career connected learning:

(a) Education and career goals documented in a personalized postsecondary education and career plan (as defined in this notice) that was updated in each year of high school through a system of career guidance and academic counseling (as defined in section 3(7) of Perkins V) and postsecondary education navigation supports that offers college and career coaching from trained advisors that is culturally responsive and informed by accurate and current labor market information;

(b) Postsecondary credits earned from dual or concurrent enrollment programs (as defined in section 3 of Perkins V) that are part of a program of study (as defined by section 3 of Perkins V) that culminates with an associate, bachelor's, or advanced degree, or completion of a Registered Apprenticeship Program;

(c) Work experience gained through participation in one or more work-based learning opportunities (as defined in section 3 of Perkins V) for which they received wages, academic credit, or both; or

(d) An in-demand and high-value industry-recognized credential (as defined in this notice).

Final Priority 2—Partnership Applications.

To meet this priority, an application—

(1) Must be submitted by an applicant that includes one or more partners in each of the following categories except as otherwise indicated:

(A) An LEA(including a public charter school LEA), an area career and technical education school, an educational service agency serving secondary school students, an Indian Tribe, Tribal organization, or Tribal educational agency, eligible to receive assistance under section 131 of Perkins V;

(B) A community or technical college or other IHE eligible to receive assistance under section 132 of Perkins V; and

(C) Two or more business or industry representative partners, which may include representatives of local or regional businesses or industries;

(2) May include any other relevant community stakeholders, such as local workforce development boards, labor-management partnerships, youth-serving organizations, nonprofit organizations, qualified intermediaries, local teachers unions or school staff unions or other representatives of teachers and faculty, and afterschool and summer learning programs; and

(3) Must include a partnership agreement or proposed memorandum of understanding (MOU) among all members of the application, identified at the time of the application, that describes the role of each partner in carrying out the proposed project and the process for a formal MOU to be established.

Final Priority 3—State and Regional Partnerships.

To meet this priority—

(a) State Partnership—A State partnership application—

(1) must be submitted by an applicant that includes one or more partners in each of the following categories except as otherwise indicated:

(A) A State agency, such as an SEA, State higher education agency or system, State workforce development agency, Governor's office, or a State economic development agency; and

(B) An LEA (including a public charter school LEA), an area career and technical education school, an educational service agency, an Indian Tribe, Tribal organization, or Tribal educational agency eligible to receive assistance under section 131 of Perkins V;

(C) A community or technical college or another IHE eligible to receive assistance under section 132 of Perkins V;

(D) Two or more business or industry representative partners, which may include representatives of local or regional businesses or industries; and

(2) May include any other relevant State or community stakeholders, such as local workforce development boards, labor-management partnerships, statewide youth-serving organizations, such as statewide afterschool networks, nonprofit organizations, intermediary organizations, local teachers unions or school staff unions or other representatives of teachers and faculty, and afterschool and summer learning programs; and

(3) Must include a description of how the project will be coordinated among partners and will leverage State resources in the achievement of program outcomes and the partnership's scope of activities that will support development or implementation of one or more of the pillars of career-connected learning, which may include setting up a governance structure to support implementation, reviewing or changing State policies, setting goals, using data to inform decisions, and convening stakeholders; and

(4) Must include a partnership agreement or proposed MOU among all partner entities, identified at the time of the application, that describes the role of each member of the partnership in carrying out the proposed project and the process for a formal MOU to be established.

(b) Regional Partnership—A regional partnership application—

(1) Must be submitted by a partnership that includes one or more members from each of the following categories except as otherwise indicated:

(A) An LEA (including a public charter school that operates as an LEA), an area career and technical education school, an educational service agency, an Indian Tribe, Tribal organization, or Tribal educational agency, eligible to receive assistance under section 131 of Perkins V;

(B) A community or technical college or another IHE eligible to receive assistance under section 132 of Perkins V;

(C) Two or more business or industry representative partners, which may include representatives of local or regional businesses or industries; and

(2) Must propose to serve two or more LEAs in the same State or region;

(3) May include any other relevant community stakeholders, such as local workforce development boards, labor-management partnerships, youth-serving organizations, nonprofit organizations, qualified intermediaries, local teachers unions or school staff unions or other representatives of teachers and faculty, and afterschool and summer learning programs; and

(4) Must include a description of how the project will be coordinated among partners that share a common economic region or labor market area, utilize labor market information to support development or implementation of the four pillars of career-connected learning, and leverage regional, State, or other resources in the achievement of program outcomes; and

(5) Must include a partnership agreement or proposed MOU among all partner entities, identified at the time of the application, that describes the role of each member of the partnership in carrying out the proposed project and the process for a formal MOU to be established.

Final Priority 4—Serving Students from Families with Low Incomes.

To meet this priority, applicants must submit a plan to predominantly serve students from families with low incomes.

The plan must include—

(a) The specific activities the applicant proposes to ensure that the project will predominantly serve students from low-income families, including how the project will recruit and retain students and the supports it will provide to students to promote retention and completion;

(b) The timeline for implementing the activities;

(c) The parties responsible for implementing the activities;

(d) The key data sources and measures demonstrating that the project is designed to predominantly serve students from low-income families; and

(e) Evidence that at least 51 percent of the students to be served by the project are from low-income families.

(1) When demonstrating that the project is designed to predominantly serve secondary students from low-income families, the applicant must use one or more of the following data sources and measures:

(A) Children aged 5 through 17 in poverty counted in the most recent census data approved by the Secretary;  22

(B) Students eligible for a free or reduced-price lunch under the Richard B. Russell National School Lunch Act (42 U.S.C. 1751 et seq. );

(C) Students whose families receive assistance under the State program funded under part A of title IV of the Social Security Act (42 U.S.C. 601 et seq. );

(D) Students who are eligible to receive medical assistance under the Medicaid program;

(E) Residence in a Census tract, a set of contiguous Census tracts, an American Indian Reservation, Oklahoma Tribal Statistical Area (as defined by the U.S. Census Bureau), Alaska Native Village Statistical Area or Alaska Native Regional Corporation Area, Native Hawaiian Homeland Area, or other Tribal land as defined by the Secretary of Labor in guidance, or a county that has a poverty rate of at least 25 percent as set every 5 years using American Community Survey 5-year data; or

(F) A composite of such indicators.

(2) When demonstrating that the project is designed to predominantly serve secondary students from low-income families, applicants may use data from elementary or middle schools that feed into a secondary school to establish that 51 percent of the students to be served by the project are students from low-income families.

(3) For projects that will serve postsecondary students, the applicant must use one or more of the following data sources to demonstrate that the project is designed to predominantly serve students from families with low-incomes:

(A) Students who are recipients of Federal Pell Grants, tuition assistance from the Bureau of Indian Education, or need-based State student aid;

(B) Students who receive, or whose families receive, assistance under the State program funded under part A of title IV of the Social Security Act (42 U.S.C. 601 et seq. );

(C) Students who are eligible to receive medical assistance under the Medicaid program; or

(D) A composite of such indicators.

Final Priority 5—Rural Communities.

To meet this priority, an applicant must demonstrate that the proposed project will serve students residing in rural communities (as defined in this notice) and identify, by name, the National Center for Education Statistics (NCES) LEA identification number, and NCES locale code, the rural LEA(s) that it proposes to serve in its grant application. Applicants may retrieve locale codes from the NCES School District search tool ( nces.ed.gov/ccd/districtsearch/ ).

Types of Priorities:

When inviting applications for a competition using one or more priorities, we designate the type of each priority as absolute, competitive preference, or invitational through a notice in the Federal Register . The effect of each type of priority follows:

Absolute priority: Under an absolute priority, we consider only applications that meet the priority (34 CFR 75.105(c)(3)).

Competitive preference priority: Under a competitive preference priority, we give competitive preference to an application by (1) awarding additional points, depending on the extent to which the application meets the priority (34 CFR 75.105(c)(2)(i)); or (2) selecting an application that meets the priority over an application of comparable merit that does not meet the priority (34 CFR 75.105(c)(2)(ii)).

Invitational priority: Under an invitational priority we are particularly interested in applications that meet the priority. However, we do not give an application that meets the priority a preference over other applications (34 CFR 75.105(c)(1)).

Final Program Requirements.

This document contains five final program requirements. These final program requirements are related to the matching requirement in section 114(e)(2) of Perkins V, the programs of study offered to students by each project, the independent evaluation (as defined in this notice) required by section 114(e)(8) of Perkins V, a final MOU, and a project implementation plan and timeline. We may apply these requirements in any year in which this program is in effect.

1. Matching Contributions.

(a) A grantee must provide from non-Federal sources ( e.g., State, local, or private sources), an amount equal to not less than 50 percent of funds provided under the grant, which may be provided in cash or through in-kind contributions, to carry out activities supported by the grant, except that the Secretary may waive the matching funds requirement, on a case-by-case basis, upon a showing of exceptional circumstances, such as (but not limited to)—

(1) The difficulty of raising matching funds for a program to serve a rural area.

(2) The difficulty of raising matching funds on Tribal land.

(3) The difficulty of raising matching funds in areas with a concentration of LEAs or schools with a high percentage of students aged 5 through 17—

(A) who are living in poverty, as counted in the most recent census data approved by the Secretary;

(B) who are eligible for a free or reduced-price lunch under the Richard B. Russell National School Lunch Act (42 U.S.C. 1751 et seq. );

(C) whose families receive assistance under the State program funded under part A of title IV of the Social Security Act (42 U.S.C. 601 et seq. ); or

(D) who are eligible to receive medical assistance under the Medicaid program.

(4) The difficulty of raising matching funds by an institution of higher education that, during the current or preceding year, has been granted a waiver by the Department of certain non-Federal cost-sharing requirements under the Federal Work Study program, the Federal Supplemental Educational Opportunity Grants program, or the TRIO Student Support Services program because it has low education and general expenditures and serves a large proportion of students receiving need-based assistance under Title IV of the Higher Education Act.

(b) Non-Federal funds used by a grantee to support activities allowable under this program prior to its receipt of the grant may be used to meet the matching requirements of this program. The prohibition against supplanting non-Federal funds in section 211(a) of Perkins V applies to grant funds provided under this program but does not apply to the matching requirement.

(c) Matching funds provided by a grantee may be met over the full duration of the grant award period, rather than per year, except that the grantee must make progress towards meeting the matching requirement in each year of the grant award period.

2. Programs of Study.

By no later than the end of the first year of the project, courses in programs of study offered by grantees to students for completion during high school must be designed to meet the entrance requirements and expectations for placement in credit-bearing coursework at public, in-state IHEs. Dual enrollment courses must confer postsecondary credit. The programs of study offered to students by grantees may include opportunities to attain an industry-recognized credential or a postsecondary certificate that participating students may earn during high school but must culminate with an associate, bachelor's, or advanced degree, or completion of a Registered Apprenticeship Program, upon completion of additional postsecondary education after high school graduation.

3. Independent Evaluation.

(a) The independent evaluation (as defined in this notice) supported by a grantee must, in accordance with instructions and definitions provided by the Secretary, report annually the number and percentage of students who graduated from high schools served by the proposed project who, prior to or upon graduation—

(1) Earned, through their successful participation in dual or concurrent enrollment programs in academic or career and technical education subject areas—

(i) any postsecondary credits; and, separately,

(ii) 12 or more postsecondary credits that are part of a program of study (as defined by section 3 of Perkins V) that culminates with an associate, bachelor's, or advanced degree, or completion of a Registered Apprenticeship Program.

(2) Completed 40 or more hours of work-based learning for which they received wages or academic credit, or both.

(3) Attained an industry-recognized credential that is in-demand in the local, regional, or State labor market and associated with one or more jobs with median earnings that exceed the median earnings of a high school graduate.

(4) Met, in each year of high school, with a school counselor, college adviser, career coach, or other appropriately trained adult for education and career counseling during which they reviewed and updated a personalized postsecondary educational and career plan (as defined by this notice).

(b) The outcomes described in paragraph (a) must be disaggregated by—

(1) Subgroups of students, described in section 1111(c)(2)(B) of the ESEA; and

(2) Special populations, as defined by section 3(48) of Perkins V;

(3) Sex; and

(4) Each CTE program and program of study (as defined by section 3 of Perkins V).

(c) The independent evaluation (as defined by this notice) supported by grantee must report annually on the extent to which CTE participants (as defined by section 3 of Perkins V) and CTE concentrators (as defined by section 3 of Perkins V) in each CTE program or program of study reflect the demographics of the school, including sex, major racial and ethnic groups, and special populations status.

(d) The independent evaluation (as defined in this notice) supported by a grantee must also report annually on the average number of postsecondary credits earned by students through their successful participation in dual or concurrent enrollment programs in academic or career and technical education subject areas and any project-specific indicators identified by the grantee.

4. Final MOU.

Within 120 days of receipt of its grant award, each grantee that submitted a partnership application must submit a final MOU among all partner entities that describes the roles and responsibilities of the partners in carrying out the project and its activities.

5. Project Implementation Plan and Timeline.

Each grantee must have a project plan that includes an implementation timeline with benchmarks to implement one or more of the four keys to career-connected learning for students served by the project, as described in Priority 1, by no later than the end of the fifth year of the project. Each grantee must submit a report documenting progress on the implementation plan and the timeline on an annual basis.

Final Application Requirements:

This document contains four final application requirements, one relating to matching funds and three related to the course sequences of the programs of study that will be offered to students by the proposed project. We may apply these requirements in any year in which this program is in effect.

1. Demonstration of Matching Funds.

(a) Each applicant must provide from non-Federal sources ( e.g., State, local, or private sources) an amount equal to not less than 50 percent of funds provided under the grant, which may be provided in cash or through in-kind contributions, to carry out activities supported by the grant unless it receives a waiver due to exceptional circumstances. The applicant must include in its grant application a budget detailing the source of the matching funds or a request to waive the entirety or a portion of the matching requirement due to exceptional circumstances.

(b) An applicant that is unable to meet the matching requirement must include in its application a request to the Secretary to reduce the matching requirement, including the amount of the requested reduction, the total remaining match contribution, an explanation and evidence of the exceptional circumstances that make it difficult for the applicant to provide matching funds, and an indication as to whether it can carry out its proposed project if the matching requirement is not waived.

2. Programs of Study.

Each applicant must identify and describe in its application the course sequences in the programs of study that will be offered by high schools in the proposed project, including the associate, bachelor's, advanced degree, or certificate of completion of a Registered Apprenticeship that students may earn by completing each program of study, and how students served by the proposed project will have equitable access to such programs of study.

3. Secondary and Postsecondary Alignment and Integration.

Each applicant must describe how it has aligned and integrated or will align and integrate the secondary coursework offered to students in funded projects to meet the entrance requirements and expectations for placement in credit-bearing coursework at public, in-state IHEs. If the alignment and integration has not been achieved at the time of application, this description must include a timeline for completion of this work by the end of the first year of the project, as well as information on the persons who will be responsible for these activities and their roles and qualifications.

4. Articulation and Credit Transfer Agreements.

Each applicant must include in its application an assurance that by no later than the end of the first year of the project, LEAs, and IHEs participating in the project will execute articulation or credit transfer agreements that ensure that postsecondary credits earned by students in dual or concurrent enrollment programs supported by the project will be accepted for transfer at each participating IHE, and other IHEs, if applicable, and count toward the requirements for earning culminating postsecondary credentials for programs of study offered to students through the project.

5. Dual or Concurrent Enrollment Goals.

Each applicant must include in its application a description of how it will substantially increase the proportion of students who graduate from high school with postsecondary credits earned through participation in dual or concurrent enrollment programs and how, over the 60-month project period, it also will seek to increase the average number of postsecondary credits earned by students to 12 or more credits.

The following definitions apply to this program. We may apply these definitions in any year in which this program is in effect.

Independent evaluation means an evaluation that is designed and carried out independent of and external to the grantee but in coordination with any employees of the grantee who developed a project component that is currently being implemented as part of the grant activities.

Industry-recognized credential means a credential that is—

(a) Developed and offered by, or endorsed by, a nationally recognized industry association or organization representing a sizable portion of the industry sector, or a product vendor;

(b) Awarded in recognition of an individual's attainment of measurable technical or occupational skills; and

(c) Sought or accepted by multiple employers within an industry or sector as a recognized, preferred, or required credential for recruitment, hiring, retention, or advancement.

Personalized postsecondary educational and career plan means a plan, developed by the student and, to the greatest extent practicable, the student's family or guardian, in collaboration with a school counselor or other individual trained to provide career guidance and academic counseling (as defined in section 3(7) of Perkins V), that is used to help establish personalized academic and career goals, explore postsecondary and career opportunities, identify programs of study and work-based learning that advance the student's personalized postsecondary education and career goals, including any comprehensive wraparound support services the student may need to participate in programs of study and work-based learning, and establish appropriate milestones and timelines for tasks important to preparing for success after high school, including applying for postsecondary education and student financial aid, preparing a resume, and completing applications for employment.

Rural community means an area served by an LEA with an urban-centric district locale code of 32, 33, 41, 42, or 43, as determined by the Secretary and defined by the National Center for Education Statistics (NCES) Locale framework.

(a) Significance.

In determining the significance of the proposed project, the Department considers one or more of the following factors:

(1) The extent to which the proposed project addresses a regional or local labor market need identified through a comprehensive local needs assessment carried out under section 134(c) of Perkins V or labor market information produced by the State or other entity that demonstrates the proposed project will address State, regional, or local labor market needs.

(2) The extent to which the proposed project demonstrates that it will serve students who are predominantly from low-income families, including evidence that at least 51 percent of the students served will be from low-income families.

(3) The extent to which the proposed project addresses significant barriers to enrollment and completion in dual or concurrent enrollment programs and will expand access to these programs for students served by the project.

(b) Quality of the project design.

In determining the quality of the project design, the Department considers one or more of the following factors:

(1) The extent to which the proposed project is likely to be effective in increasing the attainment of postsecondary credits earned through participation in dual or concurrent enrollment programs (as defined by section 3 of Perkins V) by students who are not currently participating in such programs and the likely magnitude of the increase.

(2) The extent to which the proposed project will increase the successful participation in work-based learning opportunities (as defined by section 3 of Perkins V) for which they received wages or academic credit, or both, prior to graduation by students who are not currently participating in such opportunities, and the likely magnitude of the increase.

(3) The extent to which the proposed project is likely to be effective in increasing successful participation in opportunities to attain an in-demand and high-value industry-recognized credential (as defined in this notice) that is sought or accepted by multiple employers within an industry or sector as a recognized, preferred, or required credential for recruitment, hiring, retention, or advancement by students who are not currently participating in such opportunities, and the likely magnitude of the increase.

(4) The extent to which the proposed project will implement strategies that are likely to be effective in eliminating or mitigating barriers to the successful participation by all students in dual or concurrent programs (as defined by section 3 of Perkins V), work-based learning opportunities (as defined by section 3 of Perkins V), and opportunities to attain in-demand and high-value industry-recognized credentials (as defined in this notice), including such barriers as the out-of-pocket costs of tuition, books, and examination fees; transportation; and eligibility requirements that do not include multiple measures of assessing academic readiness.

(5) The extent to which the proposed project will provide all students effective and ongoing career guidance and academic counseling (as defined by section 3 of Perkins V) in each year of high school that—

(A) Will likely result, by no later than the end of the second year of the project, in a personalized postsecondary education and career plan (as defined in this notice) for each student that is updated at least once annually with the assistance of a school counselor, career coach, mentor, or other adult trained to provide career guidance and counseling to high school students; and

(B) Includes the provision of current labor market information about careers in high-demand fields that pay living wages; advice and assistance in identifying, preparing for, and applying for postsecondary educational opportunities; information on Federal student financial aid programs; and assistance in applying for Federal student financial aid.

(6) The extent to which the proposed project is likely to prepare all students served by the project to enroll in postsecondary education following high school without need for remediation.

(c) Quality of the management plan.

In determining the quality of the management plan, the Department considers one or more of the following factors:

(1) The extent to which the project goals are clear, complete, and coherent, and the extent to which the project activities constitute a complete plan aligned to those goals, including the identification of potential risks to project success and strategies to mitigate those risks;

(2) The extent to which the management plan articulates key responsibilities for each party involved in the project and also articulates well-defined objectives, including the timelines and milestones for completion of major project activities, the metrics that will be used to assess progress on an ongoing basis, and annual performance targets the applicant will use to monitor whether the project is achieving its goals;

(3) The adequacy of the project's staffing plan, particularly for the first year of the project, including:

(A) The identification of the project director and, in the case of projects with unfilled key personnel positions at the beginning of the project, a description of how critical work will proceed; and

(B) The extent to which the project director has experience managing projects similar in scope to that of the proposed project.

(4) The extent of the demonstrated commitment of any partners whose participation is critical to the project's long-term success, including the extent of any evidence of support or specific resources from employers and other stakeholders.

(5) The extent to which employers in the labor market served by the proposed project will be involved in making decisions with respect to the project's implementation and in carrying out its activities.

(d) Support for rural communities.

In determining the extent of the project's support for rural communities, the Department considers one or more of the following factors:

(1) The extent to which the applicant presents a clear, well-documented plan for primarily serving students from rural communities.

(2) The extent to which the applicant proposes a project that will improve the education and employment outcomes of students in rural communities.

This notice does not preclude us from proposing additional priorities, requirements, definitions, or selection criteria, subject to meeting applicable rulemaking requirements.

Note: This notice does not solicit applications. In any year in which we choose to use one or more of these priorities, requirements, definitions, or selection criteria, we invite applications through a notice in the Federal Register .

Under Executive Order 12866, as modified by Executive Order 14094, the Secretary must determine whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive Order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866, as modified, defines a “significant regulatory action” as an action likely to result in a rule that may—

(1) Have an annual effect on the economy of $200 million or more (adjusted every 3 years by the Administrator of OIRA for changes in gross domestic product); or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, territorial, or Tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impacts of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues for which centralized review would meaningfully further the President's priorities or the principles stated in the Executive Order, as specifically authorized in a timely manner by the Administrator of OIRA in each case.

This proposed regulatory action is not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866, as modified.

We have also reviewed this proposed regulatory action under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866, as modified. To the extent permitted by law, Executive Order 13563 requires that an agency—

(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);

(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;

(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);

(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and

(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.

Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”

We are issuing these final priorities, requirements, definitions, and selection criteria only on a reasoned determination that their benefits would justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that would maximize net benefits. Based on the analysis that follows, the Department believes that this regulatory action is consistent with the principles in Executive Order 13563.

We also have determined that this regulatory action would not unduly interfere with State, local, territorial, and Tribal governments in the exercise of their governmental functions.

In accordance with these Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The potential costs are those resulting from statutory requirements and those we have determined as necessary for administering the Department's programs and activities.

Summary of Costs and Benefits: The Department believes that these final priorities, requirements, definitions, and selection criteria will not impose significant costs on applicants applying for assistance under section 114 of Perkins V. We also believe that the benefits of implementing the final priorities, requirements, definitions, and selection criteria justify any associated costs.

The Department believes that the final priorities, requirements, definitions, and selection criteria will help to ensure that grants provided under section 114(e) of Perkins V are awarded only for allowable, reasonable, and necessary costs; and eligible applicants consider carefully in preparing their applications how the grants may be used to improve student success in secondary education, postsecondary education, and careers. The final priorities, program requirements, definitions, and selection criteria are necessary to ensure that taxpayer funds are expended appropriately.

The Department further believes that the costs imposed on an applicant by the final priorities, requirements, definitions, and selection criteria will be largely limited to the paperwork burden related to meeting the application requirements and that the benefits of preparing an application and receiving an award would justify any costs incurred by the applicant. The costs of these final priorities, requirements, definitions, and selection criteria will not be a significant burden for any eligible applicant.

Elsewhere in this section under Paperwork Reduction Act of 1995, we identify and explain burdens specifically associated with information collection requirements.

The Department believes that the final priorities, requirements, definitions, and selection criteria in this notice are needed to administer the PIM grant program effectively. The priorities, requirements, definitions, and selection criteria will enable the Department to administer a competitive grant program consistent with the intent of Congress as expressed in House Report 117-403 accompanying the Consolidated Appropriations Act, 2023. (Pub. L. 117-328), which provided funding for the program in fiscal year 2023.

As required by OMB Circular A-4 (available at https://www.whitehouse.gov/omb/information-for-agencies/circulars/ ), in the following table we have prepared an accounting statement showing the classification of the expenditures associated with the provisions of this regulatory action. This table provides our best estimate of the changes in annual monetized transfers as a result of this regulatory action. Expenditures are classified as transfers from the Federal Government to LEAs and IHEs.

Regulatory Flexibility Act Certification: The Secretary certifies that this regulatory action does not have a significant economic impact on a substantial number of small entities. The U.S. Small Business Administration (SBA) Size Standards define “small entities” as for-profit or nonprofit institutions with total annual revenue below $7,000,000 or, if they are institutions controlled by small governmental jurisdictions (that are comprised of cities, counties, towns, townships, villages, school districts, or special districts), with a population of less than 50,000. The small entities that this regulatory action affects are school districts and IHEs. We believe that the costs imposed on an applicant by the final priorities, requirements, definitions, and selection criteria are limited to paperwork burden related to preparing an application and that the benefits of the final priorities, requirements, definitions, and selection criteria will outweigh any costs incurred by the applicant.

Participation in the PIM grant program is voluntary. For this reason, the final priorities, requirements, definitions, and selection criteria will not impose a burden on small entities unless they apply for funding under the program. We expect that in determining whether to apply for program funds, an eligible entity will evaluate the requirements of preparing an application and any associated costs and weigh them against the benefits likely to be achieved by receiving a program grant. An eligible entity will probably apply only if it determines that the likely benefits exceed the costs of preparing an application.

We believe that the final priorities, requirements, definitions, and selection criteria will not impose any additional burden on a small entity applying for a grant than the entity would face in the absence of the action. That is, the length of the applications those entities would submit in the absence of the regulatory action and the time needed to prepare an application would likely be the same.

This regulatory action will not have a significant economic impact on a small entity once it receives a grant because it will be able to meet the costs of compliance using the funds provided under this program.

The Paperwork Reduction Act of 1995 does not require you to respond to a collection of information unless it displays a valid OMB control number. We display the valid OMB control number assigned to the collection of information in this notice of final priorities, requirements, definitions, and selection criteria at the end of the affected sections of the requirements.

The final priorities, requirements, definitions, and selection criteria contain information collection requirements that are approved by OMB. The final priorities, requirements, definitions, and selection criteria do not affect the currently approved data collection. For the years that the Department holds a PIM grant competition, we estimate 150 entities will submit an application for Federal assistance using the required Department standard application forms. We estimate that it will take each applicant 40 hours to complete and submit the application, including time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. The total burden hour estimate for this collection is 6,000 hours.

Intergovernmental Review: This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive Order is to foster an intergovernmental partnership and a strengthened federalism. The Executive Order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.

This document provides early notification of our specific plans and actions for this program.

Accessible Format: On request to the person listed under FOR FURTHER INFORMATION CONTACT , individuals with disabilities can obtain this document in an accessible format. The Department will provide the requestor with an accessible format that may include Rich Text Format (RTF) or text format (txt), a thumb drive, an MP3 file, braille, large print, audiotape, or compact disc, or other accessible format.

Electronic Access to This Document: The official version of this document is the document published in the Federal Register . You may access the official edition of the Federal Register and the Code of Federal Regulations at www.govinfo.gov. At this site you can view this document, as well as all other documents of this Department published in the Federal Register, in text or Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site.

You may also access documents of the Department published in the Federal Register by using the article search feature at www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

In our final rule published July 13, 2023 (88 FR 44707), the EPA included amendatory instructions for codifying the action in 40 CFR part 52. The instructions specified the addition of paragraph 52.220(c)(603) but the number (604) incorrectly appeared in the description of the added regulatory text.

In FR Doc. 2023-14688 appearing on pages 44707-44710 in the Federal Register of Thursday, July 13, 2023, the following correction is made:

The recreational fishery for Gulf of Maine (GOM) cod and GOM haddock is managed under the Northeast Multispecies Fishery Management Plan (FMP). The multispecies fishing year starts on May 1 and runs through April 30 of the following calendar year. The FMP sets sub-annual catch limits (sub-ACLs) for the recreational fishery each fishing year for both stocks. These sub-ACLs are a fixed proportion of the overall catch limit for each stock. The FMP also includes proactive recreational accountability measures (AMs) to prevent the recreational sub-ACLs from being exceeded and reactive AMs to correct the cause, or mitigate the effects, of an overage if one occurs.

The proactive AM provision in the FMP provides a process for the Regional Administrator, in consultation with the New England Fishery Management Council (Council), to develop recreational management measures for the upcoming fishing year to ensure that the recreational sub-ACL is achieved, but not exceeded. The provisions governing this action can be found in the FMP's implementing regulations at 50 CFR 648.89(f)(3).

The 2023 recreational sub-ACL for GOM cod established by Framework Adjustment 63 (87 FR 42375, July 15, 2022), is 192 metric tons (mt), the same as the 2022 recreational sub-ACL. Framework Adjustment 65 (88 FR 34810, May 31, 2023) proposed a 610-mt recreational sub-ACL for GOM haddock. The proposed 2023 sub-ACL for GOM haddock would be reduced from 3,634 mt in 2022, a reduction of approximately 83 percent. This rule does not set sub-ACLs for any stocks. The recreational sub-ACL for GOM cod is already in place and, because Framework Adjustment 65 has been delayed, default measures are in place for other stocks, including the proposed sub-ACL for GOM haddock, until the Framework Adjustment 65 final rule is published.

The results of bio-economic model simulations that were shared with the Council and its Recreational Advisory Panel (RAP) and Groundfish Committee to help inform Council recommendations on GOM cod and haddock measures, as well as the Council, Groundfish Committee, and RAP discussions, are described in the proposed rule for this action (88 FR 23611; April 18, 2023), and not described further here.

For GOM cod, the Council recommended, and the Regional Administrator proposed, an extended fall season (September 1-October 31) while eliminating the April open season (Table 1). No changes were proposed for either the minimum size or bag limit for GOM cod. These measures are expected to adequately constrain recreational catch of GOM cod based on bio-economic model estimates. As a result, the Regional Administrator is implementing these measures for GOM cod for fishing year 2023 (Table 1).

For GOM haddock, the Council ultimately recommended a status quo season (March closed), a 15-fish limit, and an 18 inch (45.7 centimeter (cm)) minimum size. The Council's recommendation sought in part to accommodate charter and party vessels seeking to benefit from advertising a 15-fish limit and expected increased bookings. While the Council-recommended measures for GOM haddock are expected to result in catch below the recreational sub-ACL, we remain concerned that the Council measures are expected to unnecessarily constrain catch and increase dead discards of GOM haddock for private anglers compared to a 17 inch (43.2 cm) minimum size and 10-fish bag limit.

The GOM haddock stock is dominated by relatively young year classes of haddock that are beginning to recruit to the fishery. These small haddock are subject to high discard mortality, especially during the summer and fall months, so any increase in discards would convert the majority of potential landings of haddock between 17 and 18 inches (43.2 and 45.7 cm, respectively) into dead discards. A 10-fish limit at 17 inches (43.2 cm) is expected to result in higher landings, lower dead discards, more fishing trips, and higher angler satisfaction with a minimal increase in the risk of exceeding the recreational sub-ACL. Available data show that only a small proportion of anglers or trips harvest 10 or more haddock per angler and increasing the minimum size from 17 to 18 inches (43.2 and 45.7 cm, respectively) is expected to further reduce the number of haddock landed per angler. In fishing year 2022, the average number of haddock landed on trips targeting cod or haddock was just 2.3 haddock per angler, 3.6 haddock per angler on for-hire trips, and 2.2 haddock per angler on private trips. To reduce dead discards and increase landings, trips, and angler satisfaction, this rule implements the Council-recommended GOM haddock measures for only the for-hire angling mode (March closure, 15-fish limit, 18 inch (45.7 cm) minimum size; Table 2). This rule implements a status quo season (March closure), a 10-fish limit, and a 17 inch (43.2 cm) minimum size for GOM haddock for the private angling mode (Table 2).

These mode-based measures balance the different needs of the for-hire mode and the private mode and reduce discard mortality to the extent practicable. For-hire fishing operators and RAP advisors have repeatedly stated that high bag limits are beneficial for advertising and outreach to potential customers to increase for-hire trips and/or anglers per trip. Marketing trips and the resulting “booking” of trips are necessary to maintain the viability of for-hire businesses operations. The Council's recommendation for the 15-fish bag limit and increased minimum size recognizes the value of increased bookings to for-hire businesses and that the potential increased income from a higher bag limit, coupled with a higher minimum size, may result in some additional dead discards and reduced landings.

While private anglers would normally benefit from a larger bag limit as well, in this case, there is greater benefit to private anglers in a smaller minimum size, which allows them to land more of the haddock they catch. Advertising and booking trips are not relevant to private anglers because they do not operate as businesses. Private anglers, and the recreational fishery as a whole, are expected to benefit from keeping the 17 inch (43.2 cm) minimum size because anglers will land more of the haddock they encounter. Because private anglers account for the majority of recreational fishing activity, dead discards will be reduced more as a result. Thus, the mode-based measures provide a more refined balance, as dead discards are projected to be reduced by implementing the smaller minimum size in the private mode without any expected adverse economic impact.

Unlike GOM cod and haddock, the FMP does not set a sub-ACL for the recreational fishery each fishing year for Georges Bank (GB) cod. Instead, the Council establishes a recreational annual catch target for GB cod. The catch target is not an allocation or sub-ACL but sets an expectation for recreational catch for the fishing year for management purposes that is not expected to result in an overage of the overall GB cod ACL. The catch target in Framework 65 is 113 mt.

The FMP includes a process for the Regional Administrator, in consultation with the Council, to develop recreational management measures for GB cod for fishing years 2023 and 2024 to prevent the recreational fishery from exceeding the annual recreational catch target for GB. The provisions governing this authority can be found in the FMP's implementing regulations at 50 CFR 648.89(g).

Unlike GOM cod and haddock, there is no peer-reviewed bio-economic model available to evaluate the potential impacts of various recreational measures for GB cod. Instead, measures were evaluated based on estimates of the percent reduction in catch from the fishing year 2022 projection. The 2022 catch projection is 218 mt, so a harvest reduction of approximately 48 percent would be required to remain below the catch target of 113 mt in fishing year 2023. Current measures for GB cod were implemented as part of Framework Adjustment 63 on July 15, 2022 (87 FR 42375; July 15, 2022), so they were not in place for the full fishing year in 2022. Status quo measures would result in a landings reduction of about 28 percent if all states implemented complementary measures in 2023, so additional measures are needed to achieve the necessary 48-percent reduction.

This rule eliminates the maximum size limit (slot), increases the minimum size from 22 to 23 inches (55.9 to 58.4 cm, respectively), and shifts the closed season back one month to close June, July, and August instead of May, June, and July (Table 3). These measures are consistent with the Council recommendation, and we expect these measures to adequately constrain total catch to the proposed 2023 catch target.

We received comments on the proposed rule from the New England Fishery Management Council, Massachusetts Division of Marine Fisheries (MADMF), Rhode Island Party and Charter Boat Association (RIPCBA), Stellwagen Bank Charter Boat Association (SBCBA), and the Massachusetts Striped Bass Association (MSBA). We also received comments from 42 individuals, of which the majority were for-hire fishing vessel operators or private recreational anglers. The majority of comments focused on the GOM haddock measures, and a few comments discussed GB and/or GOM cod measures, one comment was opposed to the proposed rule but did not elaborate further.

Comment 1: Three commenters, including RIPCBA and MSBA, supported the proposed measures for GOM cod, and another individual supported the proposed change to the GOM cod season. The individual commenter also supported a larger minimum size for GOM cod, stating that a larger minimum size would have conservation benefits and that anglers value larger fish.

Response: This rule implements the proposed measures for GOM cod, including the season modifications recommended by the Council. This action is not implementing a larger minimum size for cod because the proposed measures are expected to keep recreational catch below the GOM cod sub-ACL. Sub-ACLs are designed to prevent overfishing while allowing catch at levels that over the long-term help achieve optimum yield.

Comment 2: Two commenters, both for-hire vessel operators, opposed the elimination of the status quo April 1 through April 14 open season for GOM cod. One stated that the April season generated customers for for-hire vessels during the spring season, and the other argued an even longer spring season would benefit for-hire businesses and that an expanded fall season would not be as helpful because other species are available to anglers during the fall season.

Response: This rule eliminates the April 1-14 open season for GOM cod, consistent with the Council recommendation. While the April season may provide some benefit to for-hire businesses, many for-hire businesses do not begin operations until later in the season and do not benefit from the April opening. The April season also provides minimal benefit to private anglers as very few private anglers are fishing in the GOM that time of year. The GOM cod measures are expected to increase overall opportunity for recreational anglers to harvest GOM cod while keeping catch below the 2023 recreational sub-ACL for GOM cod.

Comment 3: SBCBA and one individual noted that their on-the-water observations include an abundance of all size classes of cod in Massachusetts state waters, Stellwagen Bank, east of Cape Cod, and Nantucket Shoals.

Response: This action sets measures based on the 2023 recreational sub-ACL for GOM cod, which is informed by stock assessment determinations of the status and abundance of GOM cod. There can be considerable uncertainties in stock assessments, however, recent assessments have shown that the GOM cod stock is overfished. The stock declined substantially in recent years and is now near historic lows in terms of biomass. The current low ACL and recreational sub-ACL for GOM cod is intended to allow for future rebuilding of the stock. Evidence of strong recruitment of young cod is welcome news given the current status and history of the stock.

Comment 4: SBCBA and one individual commented in support of mode-based measures for GOM cod, in particular an open season for the for-hire mode from April 15 through the end of May, as historically this time period was important to for-hire operators before other species become available.

Response: This rule implements the proposed measures for GOM cod, which are expected to provide additional opportunities to harvest GOM cod while adequately restraining catch. NMFS has previously raised concerns about open seasons during the time period raised by the commenter, particularly because it overlaps with the Spring Massachusetts Bay Spawning Protection Area, which is closed to protect spawning activity from April 15 to April 30. Targeted fishing for cod should not occur during documented spawning time given the overfished status of GOM cod and the need to rebuild the resource to sustainable levels. Additionally, opening a season later than the April 1 through April 14 timeframe is likely to result in higher effort and catch. While NMFS did not evaluate an April 15 through May 31 opening using the bio-economic model, a season during that time would be expected to considerably increase catch of GOM cod.

Comment 5: Several commenters supported the proposed measures to reduce catch of GB cod. Two organizations (RIPCBA and MSBA), supported the proposed measures for GB cod, while additional commenters supported the proposed May opening for GB cod and the elimination of the slot limit for GB cod. Two of these commenters also supported winter spawning protections for GB cod. RIPCBA and MSBA both supported mid-Atlantic states adopting complementary measures to the proposed measures for GB cod in state waters.

Response: This rule implements the proposed measures for GB cod, which are expected to constrain recreational catch of GB cod to the 2023 recreational catch target. We are implementing proactive measures for GB cod, which are limited to measures aimed at achieving, but not exceeding, the recreational catch target. Spawning protections were not recommended by the Council and were not considered in this action as they are outside the scope of the proposed measures. We would support the Council considering additional spawning protections for GB cod in future actions that would impact both recreational and commercial fishing, particularly in the context of ongoing Council discussions about Atlantic cod stock structure. We coordinate with state fishery management agencies allowing them to have the opportunity to implement complementary measures for state waters within impacted stock areas.

Comment 6: Two commenters opposed measures to further constrain recreational catch of GB cod; one opposed the closed season and the other supported status quo recreational measures for GB cod.

Response: Status quo measures are not expected to adequately constrain recreational catch of GB cod. Additionally, because of the considerable recreational effort during the proposed closed season, more substantial changes to minimum or maximum sizes or the bag limit for GB cod would be needed to reduce recreational GB cod catch. We are implementing the proposed measures for GB cod, which are expected to constrain recreational catch to the 2023 recreational catch target for GB cod.

Comment 7: SBCBA suggested the use of mode-based measures for GB cod, stating that separate seasons and bag limits for for-hire vessels would help with operators' business viability and the for-hire fleet accounts for a small portion of the overall catch of GB cod.

Response: This rule is implementing the proposed measures for GB cod, which are expected to adequately constrain recreational catch, and is consistent with the Council recommendation. We did not consider mode-based measures for GB cod as they were not deemed necessary to balance varying needs of the for-hire and private recreational modes.

Comment 8: One commenter supported status quo measures for GOM haddock for private anglers but urged consideration of using alternative methods to reduce discard mortality, including additional education for anglers, use of descending devices, and implementing circle hook requirements.

Response: The bio-economic model indicates that status quo measures for recreational anglers for GOM haddock would likely result in catch exceeding the 2023 recreational sub-ACL for GOM haddock. As a result, we are implementing mode-based measures that are expected to constrain GOM haddock recreational catch below the 2023 recreational sub-ACL.

While not considered in this rule, alternative management measures, including angler education programs, gear modifications, and recreational reporting have been discussed by the RAP. Future Council actions or recommendations could consider alternative measures to enhance the conservation of groundfish stocks. In recent years, MADMF led a study that resulted in resources, including maps that support anglers trying to target haddock and avoid cod in the GOM and reduce discard mortality of encountered fish; for more information on this effort visit https://www.mass.gov/guides/haddock-recreational-fishing-guide.

Comment 9: We received 29 comments that supported the proposed mode-based measures for GOM haddock, with commenters including RIPCBA and SBCBA and a number of for-hire operators. Many of these commenters noted that the higher for-hire bag limit would have benefits for for-hire businesses through increased bookings.

Response: This rule is implementing mode-based measures for GOM haddock, as proposed. Responses to surveys of recreational anglers generally show that recreational anglers get greater satisfaction from, and prefer to catch, more legal-sized fish when given the opportunity. Marketing and booking trips is an integral part of the for-hire business model and their ability to produce income.

The RAP recommended to the Council the 15-fish limit and 18-inch minimum size, based on for-hire vessel representations and knowledge of the for-hire business model, because those measures are expected to enhance for-hire marketing and ability to gain bookings in order to increase income. However, data show that increases in the bag limits do not necessarily result in increases in landings by individual anglers. The combination of this limit with the 18-inch minimum size constrains catch sufficiently, with a smaller increase in dead discards than would occur in the private angler fishery with the same bag and size limits. Mode-based measures allow the 15-fish bag limit and 18-in (45.7-cm) minimum fish size for for-hire anglers consistent with the Council recommendation. Because private recreational anglers are not businesses that rely on bookings, the 15-fish limit is not necessary and a 10-fish limit with the smaller 17-inch (43.2-cm) minimum size results in higher landings, reduced discards, and better outcomes for private recreational anglers as a whole.

Comment 10: The Council reiterated its recommended measures for GOM haddock and provided additional context for the recommendation. MSBA and one individual also supported the Council-recommended measures for GOM haddock. The Council noted that the justifications for increasing the minimum size to 18 inches (45.7 cm) included that the large 2020 year, class of GOM haddock would likely be around 18 inches (45.7 cm) in 2023, and that advisors noted that larger fish were more valued by anglers. The Council noted that their recommended measures were intended for both the for-hire and private modes, and that they considered broad input.

Response: This rule is implementing the Council-recommended GOM haddock measures for the for-hire mode. We considered the clarifying justifications provided in the Council comment, but data do not support the assertion that the 2020 year, class of GOM haddock would reach 18 inches (45.7 cm) in 2023. The bio-economic model predicting catch under different modes used recent survey catch data. The bio-economic model results using this information expects most of the GOM haddock encountered by anglers will be less than 18 inches (45.7 cm). The bio-economic model also uses estimated angler preferences based on angler surveys. The surveys show that, while anglers value larger fish over smaller fish, anglers value kept fish much more highly than fish that are released. These factors increase the potential negative impacts on private anglers if they are held to an unnecessarily restrictive 18-inch (45.7-cm) minimum size limit. The bio-economic model showed that the more restrictive minimum size would result in considerably lower landings and significantly higher dead discards under the Council's recommendation. By implementing Council-recommended measures for the for-hire fleet, and a 10-fish at 17 inches (43.2 cm) limit for private anglers, we are balancing the needs of the for-hire fleet with the goal of maximizing landings relative to the sub-ACL while reducing discards in the recreational fishery as a whole to the extent practicable, consistent with National Standard 9 considerations.

Comment 11: Four commenters supported a 10-fish limit at 17 inches (43.2 cm) for all modes that was described, but not proposed, in the proposed rule. Another stated they would support, and their charter business would not be impacted by, a haddock bag limit as small as three or four fish. These commenters stated various reasons for their support of a smaller bag limit for all modes, including statements that higher haddock bag limits were wasteful, anglers rarely catch enough haddock to reach a limit and are happy with fewer haddock, that large limits of haddock are difficult for anglers and for-hire crews to handle, that for-hire operators would be better off with a smaller bag limit, and that there are other species available for anglers to target if they catch their limit of haddock. While one commenter suggested a larger haddock minimum size, another commented that the 17-inch (43.2-cm) minimum size would allow anglers to keep more of the haddock they catch and increase the likelihood of anglers catching a smaller (10 or fewer) bag limit.

Response: The results of the bio-economic model show that a 10-fish limit coupled with a status quo, 17-inch (43.2 cm) minimum size for GOM haddock would result in higher landings, lower dead discards, and more angler trips than the Council-recommended measures of a 15-fish bag limit at 18 inches (45.7 cm). As a result, we are implementing a 10-fish at 17-inches (43.2 cm) limit for GOM haddock for private anglers but implementing the Council-recommended measures for the for-hire mode, where the economic benefit to for-hire businesses of a larger bag limit is a consideration. Marine Recreational Information Program (MRIP) data supports the assertion that very few anglers harvest more than 10 haddock per trip, whether on private or for-hire trips.

Comment 12: Several commenters raised concerns about the use of mode-based measures for GOM haddock, including the Council, MSBA, and MADMF. Some of these commenters noted that the use of mode-based measures can be controversial or pit user groups against one another; that most anglers oppose mode-based measures; and that consideration of mode-based measures should only be considered in Council actions. Some of these commenters also noted that mode-based measures may lead to regulatory confusion, enforcement challenges, and impact the quality of MRIP data available to support future decision making. MSBA also stated that it was inappropriate for NMFS to consider marketing as a consideration in its decision making and disagreed with the summary of the Council and RAP discussions that led to the Council recommendation for a 15-fish haddock limit provided in the proposed rule.

Response: This rule is implementing mode-based measures for GOM haddock to increase catch relative to the sub-ACL, reduce dead discards, and attempt to balance the different needs of the for-hire and private modes under the unique circumstances at play this fishing year. These mode-based measures for GOM haddock are effective only for fishing year 2023. Mode-based measures do not allocate catch to either mode and are not expected to result in more GOM haddock catch going to the for-hire mode. We estimate that the for-hire mode will trade landing fewer GOM haddock under these measures than under a 10-fish limit and 17-inch (43.2-cm) minimum size to achieve the higher 15-fish limit. However, for-hire interests revolve around their business model and operations. They have repeatedly asserted that they will benefit from the opportunity to have a higher bag limit. We are adopting the Council's recommendation for the for-hire fleet to accommodate the fleet's business needs and expected increased income and the slight increase in dead discards but are concerned these measures would unnecessarily limit landings and increase dead discards for the private mode.

There is no prohibition against using mode-based measures. GOM cod measures that varied between private and for-hire modes have been approved in the past in response to Covid-19 impacts on for-hire operations. Recreational fishing participants are accustomed to varying mode-based measures that are implemented in state fisheries. State agencies throughout the region, including MADMF, have implemented mode-based recreational measures for other species, including varying minimum sizes, seasons, bag limits, and aggregate vessel bag limits, to meet various management objectives.

We agree that mode-based measures have historically been subject to various levels of public support, and mode-based allocations for this fishery have not been pursued because of significant concerns raised by many in the recreational fleet. Comments revealed various opinions across the recreational community. Most for-hire operators supported the proposed mode-based measures. Many private anglers supported consistency between modes, often with a preference for a smaller overall bag limit. There were no programmatic objections raised that require changing the mode-based measures.

Another objection to mode-based measures is a concern about compliance and enforcement. We do not expect the mode-based measures to have a considerable impact on compliance, however. Many state fisheries and some federal fisheries, for example bluefish and tilefish, successfully use differing mode-based measures. Further, we intend to do outreach and provide resources to anglers trying to navigate the regulations. We do not anticipate that mode-based measures will limit the ability of enforcement agencies to determine when a violation has occurred.

We share MADMF's concern that MRIP data available to support decision making in the region is limited and that estimates come with significant uncertainty. Mode-based measures may result in changes in the sampled landings and have other effects. But we are not concerned that mode-based measures alone will undermine the validity of MRIP data in the region. As discussed earlier, GOM haddock will be only one stock subject to mode-based measures this fishing year in the region. We expect any effect to be small and, therefore, have determined that the expected benefits of mode-based measures this fishing year outweigh the small risk of an impact to MRIP data quality. We agree that additional funding and innovations to support more effective recreational data collection in the region could improve datasets and create opportunities for more focused recreational management measures in the future.

The Council recommended the 15-fish limit combined with the 18-inch minimum size in part on the basis of marketing benefits. We are accepting this part of the Council's rationale as it recognizes that booking trips is a primary business factor for the success of the for-hire fleet. It further considers the relatively small increase in dead discards that may result. We are rejecting this combination for private anglers that do not rely on marketing and booking for successful fishing. Implementing the Council's recommended measures for the private recreational mode would result in reduced landings, increased dead discards, and make it less likely that the recreational fleet as a whole would achieve its sub-ACL for GOM haddock. Recreational management measures for cod and haddock must achieve, but not exceed, the sub-ACL's for the recreational fishery. Mode-based measures are expected to achieve this goal better than the Council-recommended measures for all modes.

Comment 13: MADMF and MSBA presented analysis based on MRIP intercept data that indicated there is no statistically significant difference in the size of haddock landed by different recreational modes. They noted this is likely because private and for-hire anglers target GOM haddock in the same general areas using the same gear. MSBA argued that, based on this finding, NMFS must implement the Council-recommended measures for GOM haddock. MADMF did not argue for any particular set of measures but did urge consideration of the MRIP-intercept data and supported consistency between modes as described in our response to comment 12 above. MADMF also noted that, based on surveys, it is probable that for-hire operators overestimate the importance of high bag limits to for-hire anglers, their potential customers.

Response: We agree with the commenters' interpretation of the MRIP-intercept data. The available data do not show a distinct difference in the size of haddock landed by different recreational angling modes. We noted in the proposed rule that Council members and advisors have suggested that for-hire anglers fish further offshore and/or catch larger haddock than their private angler counterparts, but our decision was not contingent on any relationship between recreational mode and area fished or haddock size. The bio-economic model assumes that all modes encounter the same size distribution and provides an understanding of the trends and directional impacts of different measures. But it does not allow for direct comparison of mode-based measures such as different size encounters by mode. The model informed our understanding of the impacts of different sets of measures on the recreational fishery as a whole, which informed our decision to implement mode-based measures.

The MRIP-intercept data for GOM haddock size by, and across, recreational modes suggest that an increase in the minimum size of GOM haddock above 17 inches (43.2 cm) is likely to significantly reduce landings and increase dead discards, regardless of mode. MADMF noted that the highest median length of landed GOM haddock across four recent fishing years for any mode was only 17.8 inches (45.2 cm). This suggests that an increase of the minimum size consistent with the Council recommendation of 18 inches (45.7 cm) will result in more than half of all the GOM haddock that would be able to be harvested with a 17-inch (43.2-cm) minimum size being discarded, leading to much higher discard mortality for GOM haddock, and making it even more difficult for anglers to catch and keep their GOM haddock limit.

The above conclusion supports our decision to implement a 10-fish at 17 inches (43.2 cm) limit for the private mode, as that regulation will lead to higher landings and lower dead discards than the Council-recommended measures. Arguably, the finding that for-hire anglers are not harvesting larger haddock than their private angler counterparts would support implementing a 10-fish at 17-inches (43.2 cm) limit for the for-hire fleet as well. We ultimately found the Council recommendation appropriately considered the potential benefit of additional bookings for the for-hire fleet under a higher bag limit and chose to implement the Council-recommended measures for the for-hire mode.

Comment 14: Three commenters stated that recreational fishing is not contributing as much to impacts on the fishery as commercial fishing, especially trawling, which commenters stated had a bigger impact. One of the commenters noted that they were concerned about the depletion of baitfish in near shore waters.

Response: The measures in this rule constrain recreational fishery catch to catch limits and targets for GOM cod and haddock and GB cod; this rule did not consider changes to commercial measures or allocations between commercial and recreational fisheries.

Comment 15: Two commenters stated that recreational fishing and booking a charter is becoming too expensive for anglers to continue to be interested in recreational fishing for groundfish.

Response: The measures in this rule are intended to allow the recreational fishery to achieve, but not exceed, their sub-ACL's. NMFS cannot set management measures on the basis of the cost of fishing or booking trips.

Comment 16: Two commenters stated that it is not clear when the proposed measures would be implemented (with no further explanation of concern). One noted just overall uncertainty while the other noted that it could impact a charter trip he had already booked for August 2023. One commenter asked that, in the future, regulations be in place by the start of the fishing year to avoid conflicts with trips that were already booked. Another commenter noted that major changes in recreational measures from year to year are a challenge for for-hire operators and anglers.

Response: This rule implements the proposed measures for GOM cod and haddock and GB cod. Measures are effective immediately for federal waters, however, anglers should be aware that state-waters measures may differ. We share the commenters concerns about the timing of the implementation of future measures and agree that major changes between years can be challenging for anglers and for-hire businesses to adapt to. We will continue to work with the Council to consult on future recreational actions and to implement necessary changes to regulations as quickly as possible and closer to the start of the fishing year on May 1.

Comment 17: One commenter stated that measures should be considered for other stocks including pollock, redfish, and cusk. Another commenter asked whether the status of Atlantic wolffish would be reevaluated and stated that he hoped anglers could be allowed to keep wolffish in the future.

Response: The regulations allow NMFS to set Northeast multispecies recreational management measures for GB cod, and GOM cod and haddock. The Council could consider changes to recreational measures for Northeast multispecies stocks in a future action. Cusk is not currently managed under the Northeast Multispecies FMP. Management measures for cusk would require adding it to an FMP through the Council process. Atlantic wolffish was last assessed in 2022. The assessment concluded that the stock is currently overfished. Due to its status, both commercial and recreational vessels are prohibited from possessing Atlantic wolffish.

This rule implements regulations outlined in the proposed rule, and there are no changes from the proposed measures in this final rule.

NMFS is issuing this final rule pursuant to section 305(d) of the Magnuson-Stevens Act. In a previous action taken pursuant to section 304(b), the Council designed the FMP to specify the process for NMFS to take this action pursuant to MSA section 305(d). See 50 CFR 648.89(f)(3) and (g). The NMFS Assistant Administrator has determined that this final rule is consistent with the Northeast Multispecies FMP and other applicable law.

The Assistant Administrator for Fisheries finds that there is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in the date of effectiveness for this action. This final rule must be implemented as soon as possible reduce the potential for overfishing and avoid regulatory confusion. The regulations governing development and implementation of these measures are designed to facilitate implementation in a timely way that accounts for measures that are annual and seasonal. The fishing year begins May 31 each year, though delays in receiving, as happened here, information required to develop measures and the public process for developing such measures at times can result in implementing measures after that date. Recreational measures also often include seasonal restrictions or modifications designed with timing requirements essential to meeting their conservation and management goals and objectives.

A delay in the implementation of measures may result in overages or overfishing. For GOM haddock, less restrictive status quo measures have been in effect since May 1, 2023, potentially increasing catch above the levels predicted in the bio-economic model and raising the likelihood of an overage. GOM haddock is subject to overfishing and these new measures in the recreational fishery to help prevent overfishing are important components of the overall set of measures (for commercial and recreational fishing) to prevent overfishing. For GB cod, the August 1 start of the proposed August closure which was recommended to limit cod catch and help prevent overfishing has already passed. Further delay would increase the potential that recreational harvest could contribute to excess catch relative to estimates and may contribute to possible overfishing of the GB cod stock. Exceeding catch targets may require more restrictive measures in the following fishing year that could result in lost fishing opportunities and adverse economic impacts.

The current delay, and further delay, of implementing this rule will result in regulatory confusion for the industry. Recreational stakeholders are well aware of the proposed measures but are currently fishing under last year's different measures. NMFS has received numerous requests for clarification on what measures anglers should be following and when measures will be implemented. This includes questions about the haddock limits and the August closure for GB cod. A delay also has the potential to negatively impact for-hire fishing business operations and angler's fishing trip bookings as fishing charter companies and anglers wait for the final measures to be implemented.

For GOM cod, a delay in implementation of regulations expanding the fall season may result in reduced or delayed bookings for for-hire vessels during that season. If the measures in this rule are delayed, anglers may cancel reservations or try to reschedule trips for other dates; some operators may have to reimburse clients for trips already booked, reserved, or paid for. This could also hurt the business relationships between for-hire operators and their clients, leading to longer-term economic impacts for operators. For GB cod, trips that are already booked in August would need to be canceled with immediate implementation of this action. However, in this instance, the need for the August closure to help prevent overfishing supersedes the concern about booking trips. In addition, if we announce a delay in effectiveness past August, anglers will book trips in August, thereby ensuring that the benefits of the August closure would be undermined.

Furthermore, anglers and for-hire operators who are subject to this action expect timely implementation to provide regulatory certainty, prevent overages and overfishing, and prevent adverse economic impacts. This final rule follows a process for setting yearly measures that are familiar to, and anticipated by, fishery participants. During the development of this rule, and in particular after the proposed rule comment period ended, private anglers and for-hire vessel owners and operators sought information from NMFS about the status and timing of the implementation of these measures. They regularly urged NMFS to finalize the measures so that the measures for the year would take effect as intended.

For these reasons, a 30-day delay in the date of effectiveness for this final rule is unnecessary, impracticable and contrary to the public interest.

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, which was published in the proposed rule, has not changed and is not repeated here. No comments were received regarding this certification. As a result, a final regulatory flexibility analysis was not required and none was prepared.

This proposed rule contains no information collection requirements under the Paperwork Reduction Act of 1995.

This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

For the reasons set out in the preamble, NMFS is amending 50 CFR part 648 as follows: