The Agencies' CRA regulations establish CRA performance standards for small and intermediate small banks. The CRA regulations define small and intermediate small banks by reference to asset-size criteria expressed in dollar amounts, and they further require the Agencies to publish annual adjustments to these dollar figures based on the year-to-year change in the average of the CPI-W, not seasonally adjusted, for each 12-month period ending in November, with rounding to the nearest million. 12 CFR 228.12(u)(2) and 345.12(u)(2). This adjustment formula was first adopted for CRA purposes by the Board, the Office of the Comptroller of the Currency (OCC), and the FDIC on August 2, 2005, effective September 1, 2005. 70 FR 44256 (Aug. 2, 2005). At that time, the Agencies noted that the CPI-W is also used in connection with other Federal laws, such as the Home Mortgage Disclosure Act. See 12 U.S.C. 2808; 12 CFR 1003.2. On March 22, 2007, and effective July 1, 2007, the former Office of Thrift Supervision (OTS), the agency then responsible for regulating savings associations, adopted an annual adjustment formula consistent with that of the other Federal banking agencies in its CRA rule previously set forth at 12 CFR part 563e. 72 FR 13429 (Mar. 22, 2007).

Pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), 1 effective July 21, 2011, CRA rulemaking authority for Federal and State savings associations was transferred from the OTS to the OCC, and the OCC subsequently republished, at 12 CFR part 195, the CRA regulations applicable to those institutions. 2 In addition, the Dodd-Frank Act transferred responsibility for supervision of savings and loan holding companies and their non-depository subsidiaries from the OTS to the Board, and the Board subsequently amended its CRA regulation to reflect this transfer of supervisory authority. 3

The OCC has determined that it will adjust the asset-size criteria for institutions that are subject to OCC-issued CRA regulations, including national banks and Federal and State savings associations, by a means separate from this rulemaking process.

The threshold for small banks was revised most recently in December 2022 and became effective January 1, 2023. 87 FR 78829 (Dec. 23, 2022). The current CRA regulations provide that banks that, as of December 31 of either of the prior two calendar years, had assets of less than $1.503 billion are small banks. Small banks with assets of at least $376 million as of December 31 of both of the prior two calendar years and less than $1.503 billion as of December 31 of either of the prior two calendar years are intermediate small banks. 12 CFR 228.12(u)(1) and 345.12(u)(1). This joint final rule revises these thresholds.

During the 12-month period ending November 2023, the CPI-W increased by 4.06 percent. As a result, the Agencies are revising 12 CFR 228.12(u)(1) and 345.12(u)(1) to make this annual adjustment. Beginning January 1, 2024, banks that, as of December 31 of either of the prior two calendar years, had assets of less than $1.564 billion are small banks. Small banks with assets of at least $391 million as of December 31 of both of the prior two calendar years and less than $1.564 billion as of December 31 of either of the prior two calendar years are intermediate small banks. The Agencies also publish current and historical asset-size thresholds on the website of the Federal Financial Institutions Examination Council at https://www.ffiec.gov/cra/.

Under 5 U.S.C. 553(b)(B) of the Administrative Procedure Act (APA), an agency may, for good cause, find (and incorporate the finding and a brief statement of reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.

The amendments to the regulations to adjust the asset-size thresholds for small and intermediate small banks result from the application of a formula established by a provision in the respective CRA regulations that the Agencies previously published for comment. See 70 FR 12148 (Mar. 11, 2005), 70 FR 44256 (Aug. 2, 2005), 71 FR 67826 (Nov. 24, 2006), and 72 FR 13429 (Mar. 22, 2007). As a result, §§ 228.12(u)(1) and 345.12(u)(1) of the Agencies' respective CRA regulations are amended by adjusting the asset-size thresholds as provided for in §§ 228.12(u)(2) and 345.12(u)(2).

Accordingly, the Agencies' rules provide no discretion as to the computation or timing of the revisions to the asset-size criteria. For this reason, the Agencies have determined that publishing a notice of proposed rulemaking and providing opportunity for public comment are unnecessary.

The effective date of this joint final rule is January 1, 2024. Under 5 U.S.C. 553(d)(3) of the APA, the required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except, among other things, as provided by the agency for good cause found and published with the rule. Because this rule adjusts asset-size thresholds consistent with the procedural requirements of the CRA rules, the Agencies conclude that it is not substantive within the meaning of the APA's delayed effective date provision. Moreover, the Agencies find that there is good cause for dispensing with the delayed effective date requirement, even if it applied, because their current rules already provide notice that the small and intermediate small asset-size thresholds will be adjusted as of December 31 based on 12-month data as of the end of November each year.

The Regulatory Flexibility Act (RFA) does not apply to a rulemaking when a general notice of proposed rulemaking is not required. 5 U.S.C. 603 and 604. As noted previously, the Agencies have determined that it is unnecessary to publish a general notice of proposed rulemaking for this joint final rule. Accordingly, the RFA's requirements relating to an initial and final regulatory flexibility analysis do not apply.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) states that no agency may conduct or sponsor, nor is the respondent required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The Agencies have determined that this final rule does not create any new, or revise any existing, collections of information pursuant to the Paperwork Reduction Act. Consequently, no information collection request will be submitted to the OMB for review.

Section 302 of the Riegle Community Development and Regulatory Improvement Act of 1994 (RCDRIA) (12 U.S.C. 4802) requires that each Federal banking agency, in determining the effective date and administrative compliance requirements for new regulations that impose additional reporting, disclosure, or other requirements on insured depository institutions (IDIs), consider, consistent with principles of safety and soundness and the public interest, any administrative burdens that such regulations would place on depository institutions, including small depository institutions, and customers of depository institutions, as well as the benefits of such regulations. 4 In addition, new regulations and amendments to regulations that impose additional reporting, disclosures, or other new requirements on IDIs generally must take effect on the first day of a calendar quarter that begins on or after the date on which the regulations are published in final form. 5

Because the final rule does not impose additional reporting, disclosure, or other requirements on IDIs, section 302 of RCDRIA does not apply. Nevertheless, the requirements of section 302 of RCDRIA, and the administrative burdens and benefits of the final rule, were considered as part of the overall rulemaking process.

For purposes of Congressional Review Act, the OMB makes a determination as to whether a final rule constitutes a “major” rule. 6 If a rule is deemed a “major rule” by the OMB, the Congressional Review Act generally provides that the rule may not take effect until at least 60 days following its publication. 7

The Congressional Review Act defines a “major rule” as any rule that the Administrator of the Office of Information and Regulatory Affairs of the OMB finds has resulted in or is likely to result in—(A) an annual effect on the economy of $100,000,000 or more; (B) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies or geographic regions; or (C) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. 8 As required by the Congressional Review Act, the FDIC will submit the final rule and other appropriate reports to Congress and the Government Accountability Office for review.

For the reasons set forth in the common preamble, the Board of Governors of the Federal Reserve System amends part 228 of chapter II of title 12 of the Code of Federal Regulations as follows:

The UVL, found in supplement no. 6 to part 744 of the EAR (15 CFR parts 730-774), contains the names and addresses of foreign persons who are or have been parties to a transaction, as described in § 748.5 of the EAR, involving the export, reexport, or transfer (in-country) of items subject to the EAR. These foreign persons are added to the UVL because BIS or federal officials acting on BIS's behalf were unable to verify their bona fides ( i.e., legitimacy and reliability relating to the end-use and end user of items subject to the EAR) through an end-use check. These checks, such as a pre-license check (PLC) or a post-shipment verification (PSV), cannot be completed satisfactorily for reasons outside the U.S. Government's control.

There are a number of reasons why these checks cannot be completed to the satisfaction of the U.S. Government. Section 744.15(c)(1) of the EAR provides illustrative examples of those circumstances, including reasons unrelated to the cooperation of the foreign party subject to the end-use check. Such examples include: (i) During the conduct of an end-use check, the subject of the check is unable to demonstrate the disposition of items subject to the EAR; (ii) The existence or authenticity of the subject of an end-use check cannot be verified ( e.g., the subject of the check cannot be located or contacted); (iii) Lack of cooperation by the host government authority prevents an end-use check from being conducted.

BIS's inability to confirm the bona fides of foreign persons subject to end-use checks raises concerns about the suitability of such persons as participants in future exports, reexports, or transfers (in-country) of items subject to the EAR; it also indicates a risk that such items may be diverted to prohibited end uses and/or end users. Under such circumstances, there may not be sufficient information to add the foreign person at issue to the Entity List under § 744.11 of the EAR. Therefore, BIS may add the foreign person to the UVL.

As provided in § 740.2(a)(17) of the EAR, the use of license exceptions for exports, reexports, and transfers (in-country) involving a party or parties to the transaction who are listed on the UVL is suspended. Additionally, under § 744.15(b) of the EAR, there is a requirement for exporters, reexporters, and transferors to obtain (and maintain a record of) a UVL statement from a party or parties to the transaction who are listed on the UVL before proceeding with exports, reexports, and transfers (in-country) to such persons, when the exports, reexports and transfers (in-country) are not subject to a license requirement. Finally, pursuant to § 758.1(b)(8), Electronic Export Information (EEI) must be filed in the Automated Export System (AES) for all exports of tangible items subject to the EAR where any party to the transaction, as described in § 748.5(d) through (f), is listed on the UVL.

Requests for the removal of a UVL entry must be made in accordance with § 744.15(d) of the EAR. Decisions regarding the removal or modification of a UVL entry will be made by the Deputy Assistant Secretary for Export Enforcement, based on a demonstration by the listed person of their bona fides.

This rule adds 13 persons to the UVL by amending supplement no. 6 to part 744 of the EAR to include their names and addresses. BIS is adding these persons pursuant to § 744.15(c) of the EAR. This final rule implements the decision to add the following 13 persons located in China to the UVL:

• Beijing Jin Sheng Bo Yue Technology Co., Ltd.;

• Beijing Shengbo Xietong Technology Co., Ltd.;

• Fulian Precision Electronics (Tianjin) Co., Ltd.;

• Guangzhou Xinwei Transportation Co., Ltd.;

• Guangzhou Xinyun Intelligent Technology Co., Ltd.;

• Nanning Fulian Fu Gui Precision Industrial Co., Ltd.;

• Ningbo MOOF Trading Co., Ltd.;

• Plexus (Xiamen) Co., Ltd.;

• PNC Systems (Jiangsu) Co., Ltd.;

• Shenzhen Bozhitongda Technologic Co., Ltd.;

• Shenzhen Jia Li Chuang Tech Development Co., Ltd.;

• Shenzhen Jingelang Co., Ltd.; and

• Xi'An Yierda Co., Ltd.

Shipments (1) that are removed from license exception eligibility or that are now subject to requirements in § 744.15 of the EAR as a result of this regulatory action; (2) that were eligible for export, reexport, or transfer (in-country) without a license before this regulatory action; and (3) that were on dock for loading, on lighter, laden aboard an exporting carrier, or en route aboard a carrier to a port of export, on December 19, 2023, pursuant to actual orders, may proceed to that UVL listed person under the previous license exception eligibility or without a license and pursuant to the export clearance requirements set forth in part 758 of the EAR that applied prior to this person being listed on the UVL, so long as the items have been exported from the United States, reexported or transferred (in-country) before January 18, 2024. Any such items not actually exported, reexported or transferred (in-country) before midnight on January 18, 2024, are subject to the requirements in § 744.15 of the EAR in accordance with this regulation.

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 not been designated a “significant regulatory action” under Executive Order 12866.

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

Notwithstanding any other provision of law, no person is required to respond to, nor is 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.

The UVL additions contain collections of information approved by OMB under the following control numbers:

BIS believes that the overall increases in burdens and costs will be minimal and will fall within the already approved amounts for these existing collections. Additional information regarding these collections of information—including all background materials—can be found at https://www.reginfo.gov/public/do/PRAMain by using the search function to enter either the title of the collection or the OMB Control Number.

Pursuant to Section 1762 of ECRA (50 U.S.C. 4821), this action is exempt from the Administrative Procedure Act (5 U.S.C. 553) requirements for notice of proposed rulemaking and opportunity for public participation.

Further, no other law requires notice of proposed rulemaking or opportunity for public comment for this interim final rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required under the Administrative Procedure Act or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) are not applicable.

Accordingly, part 744 of the Export Administration Regulations (15 CFR parts 730 through 774) is amended as follows:

This document advises the public of waivers and flexibilities from HUD requirements for its Indian Housing Block Grant (IHBG), Indian Community Development Block Grant (ICDBG), and Native Hawaiian Housing Block Grant (NHHBG) grantees located in areas that are covered by Presidentially Declared Disasters (PDDs) declared during Calendar Years 2024 and 2025. Please note that the waivers and flexibilities in this document do not apply to the various COVID-relief related programs administered by the Office of Native American Programs (IHBG-CARES, IHBG-ARP, ICDBG-CARES, ICDBG-ARP, and NHHBG-ARP) because HUD has issued separate waivers and alternative requirements that apply to those programs, as further outlined in the Implementation and Waiver Notices governing those programs.

The following is a list of HUD requirement waivers and flexibilities available for IHBG, ICDBG, and NHHBG grantees located within PDD areas. Grantees may use any of the waivers and flexibilities below to assist their communities in addressing challenges and issues that result from a disaster covered by a PDD declared in CY 2024 and 2025.

The IHBG regulations at 24 CFR part 1000 require that affordable housing under the Native American Housing Assistance and Self-Determination Act of 1996 (NAHASDA) be of moderate design with a size and with amenities consistent with unassisted housing offered for sale in the Indian tribe's general geographic area to buyers who are at or below the area median income (AMI). To achieve this requirement the recipient must either adopt written standards for its affordable housing programs that reflect the requirement specified or use total development cost (TDC) limits published periodically by HUD that establish the maximum amount of funds (from all sources) that the recipient may use to develop or acquire/rehabilitate affordable housing. The limits provided by the TDC may not, without prior HUD approval, exceed by more than 10 percent the TDC maximum cost for the project. Non-dwelling structures used to support an affordable housing activity must be of a design, size and with features or amenities that are reasonable and necessary to accomplish the purpose intended by the structures.

Disasters may result in disruptions to supply chains, lead to labor and contractor shortages, and result in overall increases in construction costs. Given this possibility of increased costs of resources and the urgency to rehabilitate homes following a PDD, HUD is waiving the TDC regulatory requirements in 24 CFR 1000.156, 1000.158, 1000.160, and 1000.162 relating to limitations on cost or design standards and TDC with respect to dwelling and non-dwelling units developed, acquired, or assisted with IHBG funding. Under this waiver, an IHBG recipient may exceed the current TDC maximum by 20 percent without HUD review or approval (other than notification by the grantee pursuant to the procedures outlined in Section II of this document). The recipient, however, must maintain documentation that indicates the dwelling units and non-dwelling structures developed, acquired, or assisted with this funding will, after the PDD, be for IHBG-eligible families and the design, size, and amenities are moderate and comparable to housing in the area. The TDC limits can be exceeded by more than 20 percent if the recipient receives written approval from HUD Headquarters. This waiver applies to both single-family and multi-family housing, as well as non-dwelling structures.

2. Income Verification (24 CFR 1000.128):

24 CFR 1000.128 requires IHBG recipients to verify that a family is income eligible. Families are required to provide documentation to verify this determination, and a recipient is required to maintain that documentation. Families may be required by the IHBG recipient to periodically verify income after initial occupancy, and the recipient is required to maintain documentation.

As families may be displaced during a PDD and may not have access to their income documentation, HUD is waiving § 1000.128, and allowing the following:

(a) IHBG recipients may deviate from their current written admissions and occupancy policies, and may allow less frequent income recertifications; and

(b) IHBG recipients may carry out intake and other tasks necessary to verify income through alternative means if the IHBG recipient chooses to do so, including allowing income self-certification over the phone (with a written record by the IHBG recipient's staff), or through an email with a self-certification form signed by a family.

3. Assistance to Middle-Income Families Impacted by a Disaster (24 CFR 1000.104, 1000.106, 1000.108, and 1000.110):

Generally, Section 201 of NAHASDA and the IHBG regulations at 24 CFR 1000.104, 1000.106, 1000.108, and 1000.110 require that IHBG recipients limit assistance to low-income Native American families, with some exceptions for non-low-income families at 80-100 percent AMI, families over 100 percent of AMI, and essential families under section 201(b)(3) of NAHASDA. Section 201(b)(2) and 24 CFR 1000.110 provide that an IHBG recipient may aid a non-low-income family upon a documented determination by the recipient that there is a need for housing for such family that cannot reasonably be met without such assistance. 24 CFR 1000.110(c) provides that a recipient may use up to 10 percent of the amount planned for the Tribal program year for families whose income falls within 80 to 100 percent of AMI without HUD approval. HUD approval is required if a recipient plans to use more than 10 percent of the amount planned for the Tribal program year for such assistance or to provide housing for families with income over 100 percent of AMI. Finally, 24 CFR 1000.110(d) provides that non-low-income families cannot receive the same benefits provided low-income Indian families. The amount of rental assistance, homeownership assistance, and other assistance that non-low-income families may receive will be determined in accordance with the formula provided in that regulation.

Disasters may devastate and displace Native American families in a community of all incomes, make housing uninhabitable, damage community infrastructure, and result in a loss of life and property. IHBG recipients may find it in the public interest to aid non-low-income families that are displaced due to a disaster, including by using IHBG funds to provide such assistance as temporary rental assistance to otherwise ineligible families in IHBG-assisted housing owned or operated by the recipient, housing such families in hotels/motels, and similar facilities, providing such families with necessary relocation assistance, and more. To help alleviate the impact of PDDs on Tribal communities, HUD is waiving 24 CFR 1000.104, 1000.106, 1000.108, and 1000.110 to the extent necessary to allow for the following flexibilities:

(a) IHBG recipients in areas covered by PDDs may exceed the 10 percent cap on serving Native American families whose income falls within 80 to 100 percent of AMI without HUD approval, provided the recipient decides that the families are impacted by the disaster and that there is a need for housing for such family that cannot reasonably be met without such assistance.

(b) IHBG recipients in areas covered by PDDs may provide IHBG assistance to middle-income Native American families whose income is at or below 120 percent of AMI without HUD approval, provided the recipient decides that the families are impacted by the disaster and that there is a need for housing for such family that cannot reasonably be met without such assistance.

In all cases, assistance to these non-low-income families must still comply with limits on assistance specified in 24 CFR 1000.110(d). Additionally, all assistance must be temporary in nature. For instance, such families may receive temporary rental assistance that is time-limited pursuant to the recipient's policies but may not receive permanent tenant-based rental assistance with no specified end date. IHBG recipients must ensure that IHBG assistance provided does not result in a duplication of benefits. For example, IHBG recipients should not pay for costs that are already covered by private insurance or other Federal, State, or Tribal funds or programs. Finally, when providing this assistance, IHBG recipients must also maintain records documenting that all these criteria were met at the time that such assistance was provided.

1. Purchasing Equipment (24 CFR 1003.207(b)(1)(i)):

The purchase of equipment with ICDBG funds is generally ineligible under 24 CFR 1003.207(b)(1)(i), with some exceptions. Given the immediate need for certain equipment to carry out ICDBG-eligible activities related to disaster recovery, such as construction equipment necessary for clearance, construction, rehabilitation, and other recovery efforts in the aftermath of a PDD, HUD is waiving 24 CFR 1003.207(b)(1)(i) and authorizing the use of ICDBG funds for the purchase of equipment necessary to carry out ICDBG-eligible activities that assist with clearance, rehabilitation, construction, and other uses related to housing, public facilities, improvements, and works, and other disaster-recovery related purposes. Equipment must be used for authorized program purposes, and any proceeds from the disposition of equipment will be considered ICDBG program income. HUD may issue further guidance in the future on the disposition of program income after grant closeout.

2. Emergency Payments for Up to Six Months (24 CFR 1003.207(b)(4)):

Under 24 CFR 1003.207(b)(4), the general rule is that ICDBG funds may not be used for income payments. For purposes of the ICDBG program, income payments mean a series of subsistence-type grant payments made to an individual or family for items such as food, clothing, housing (rent or mortgage), or utilities. However, ICDBG may be used to make emergency payments over a period of up to three months to the provider of such items or services on behalf of an individual or family.

Low- and moderate-income families impacted by disasters may have an immediate need for short-term rental assistance, mortgage assistance, utility assistance, food, clothing, and similar services.

To provide additional relief to families impacted by disasters, HUD is waiving 24 CFR 1003.207(b)(4) to the extent necessary to allow ICDBG grant funds to be used to provide emergency payments for low- and moderate-income individuals or families impacted by a PDD. These grant funds may be used for items such as food, medicine, clothing, and other necessities, as well as rental, mortgage, and utility assistance, without regard for the three-month limitation in 24 CFR 1003.207(b)(4), but for a period not to exceed six months, unless further approved in writing by HUD on a case-by-case basis.

ICDBG grantees may establish lines of credit with third party providers ( e.g., grocery stores) on behalf of specific beneficiary families, provided all expenses can be properly documented and all ICDBG funds used for this purpose are expended on eligible activities. In all cases, ICDBG grantees must ensure that proper documentation is maintained to ensure that all costs incurred are eligible. ICDBG grantees using this waiver flexibility must document, in their policies and procedures, how they will determine the necessary and reasonable amount of assistance to be provided.

1. Assistance to Middle-Income Families Impacted by Disaster (24 CFR 1006.301(a)):

24 CFR 1006.301(a) describes families eligible for NHHBG assistance as low-income Native Hawaiian families who are eligible to reside on the Hawaiian homelands. Section 809(a)(2) of NAHASDA limits assistance for families who are not low-income to homeownership activities, as approved by HUD, to address a housing need that cannot be reasonably met without that assistance. Section 1006.301(d) requires the Department of Hawaiian Home Lands (DHHL) to have written policies governing eligibility, admission, and occupancy of families for NHHBG-assisted housing.

Disasters may devastate and displace Native Hawaiian families in a community of all incomes, make housing uninhabitable, damage community infrastructure, and result in loss of life and property. DHHL may find it in the public interest to aid non-low-income families that are displaced due to a disaster by using NHHBG funds to provide such assistance as temporary mortgage assistance, temporary rental assistance on or off the Hawaiian home lands, housing such families in hotels, motels, or similar facilities, providing such families with necessary relocation assistance, and more. To help alleviate the impact of PDD on Native Hawaiian communities, HUD is waiving 24 CFR 1006.301(a) to allow DHHL more flexibility to provide NHHBG assistance to families that are middle income (defined as 120 percent of AMI), provided the assistance is for homeownership activities (which may include short-term rental assistance to displaced homeowners), is temporary in nature, and DHHL determines that the families are impacted by the disaster and that there is a need for housing for such family that cannot reasonably be met without such assistance.

Under this waiver, Native Hawaiian families impacted by PDD can automatically be served provided their household income does not exceed 120 percent of AMI, there is no duplication of benefits, and all eligible criteria in this waiver are met. All assistance must be temporary in nature. For instance, such families may receive temporary rental assistance that is time-limited pursuant to DHHL's policies but may not receive permanent tenant-based rental assistance with no specified end date. DHHL must ensure that NHHBG assistance provided does not result in a duplication of benefits. For example, DHHL should not pay for costs that are already covered by private insurance or other Federal or State funds or programs. Further, when providing this assistance, DHHL must maintain records documenting that all these criteria were met at the time that such assistance was provided. HUD encourages DHHL to update its written policies to allow middle-income Native Hawaiian families who are impacted by disasters covered by a PDD to be considered eligible for NHHBG homeownership assistance and include a definition for `temporary' assistance.

2. Income Verification (24 CFR 1006.320):

24 CFR 1006.320 requires DHHL to have written policies regarding tenant and homebuyer selection and criteria related to eligibility for NHHBG assistance. Many families whose homes were damaged or destroyed by the disaster may not have any documentation of income. DHHL may modify its policy and procedures to streamline any income verification and documentation requirements for families impacted by PDDs. This may include allowing income self-certification over the phone (with a written record by the DHHL's staff), or through an email with a self-certification form signed by a family. This waiver applies only to families impacted by PDDs whose income documentation was destroyed or made difficult to access by the disaster.

To use the waivers or flexibilities, grantees must provide notification in writing, preferably by email, to the Administrator in the Office of Native American Programs ( ONAP) Area Office serving their area before the grantee anticipates using the waiver or flexibility. Grantees can find their ONAP office at https://www.hud.gov/program_offices/public_indian_housing/ih/codetalk/onap/map/nationalmap . The written notification should include the following details:

• Requestor's Tribe/Tribally Designated Housing Entity (TDHE)/DHHL, name, title, and contact information.

• Presidentially declared major disaster area(s) where the waivers will be used.

• Date on which the grantee anticipates the first use of the waiver or flexibility, and its expected duration (which must include a specific end date), and

• A list of the waivers and flexibilities the grantee will use.

An IHBG, ICDBG, or NHHBG grantee in a PDD may request an exception of a HUD requirement not listed in Section I of this document. HUD will only consider such exception requests subject to statutory limitations and pursuant to 24 CFR 5.110. HUD will not approve a recipient's request to waive or be granted a flexibility for an existing fair housing or civil rights obligation.

Waivers and flexibilities provided in this document will remain available to grantees provided a grantee is using the waivers or flexibilities in response to a PDD declared in CY 2024 or 2025 or as part of the recovery process effort for such PDD. HUD recommends that grantees clearly document the need for each waiver and flexibility in their records and ensure that a specific time period for which the grantee will use the waivers and flexibilities that the grantee specifies in its written notification to HUD, described in Section II of this document, is reasonably set and ties back to the response and recovery effort. If a grantee finds a need to extend the period for which it will use a waiver or flexibility beyond the end date initially set by the grantee in its initial written notification to aid in its ongoing recovery effort, the grantee should send HUD written notification of its intent to extend the end date. The request must also demonstrate to HUD's satisfaction that the new time period is reasonably set and ties back to the response and recovery effort.

A Finding of No Significant Impact (FONSI) with respect to the environment has been made in accordance with HUD regulations at 24 CFR part 50, which implement section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)).

The FONSI is available for public inspection between 8 a.m. and 5 p.m. Eastern Time weekdays in the Regulations Division, Office of General Counsel, U.S. Department of Housing and Urban Development, 451 7th Street SW, Room 10276, Washington, DC 20410-0500. Due to security measures at the HUD Headquarters building, an advance appointment to review the docket file must be scheduled by calling the Regulations Division at 202-708-3055 (this is not a toll-free number). HUD welcomes and is prepared to receive calls from individuals who are deaf or hard of hearing, or who have speech and other communication disabilities may use a relay service to reach the Regulations Division. To learn more about how to make an accessible telephone call, visit the web page for Federal Communications Commission at https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs.

The information collections referenced in this document have been approved by OMB pursuant to the Paperwork Reduction Act under, OMB Control Number 2577-0292.

The final regulations (TD 9979) that are the subject of this correction are under section 48(e) of the Code.

Accordingly, the final regulations (TD 9979) that are the subject of FR Doc. 2023-17078, appearing on page 55506 in the Federal Register published on August 15, 2023, are corrected as follows:

1. On page 55519, in the third column, the heading “VII. Annual Capacity Limitation” is corrected to read “ VII. Annual Capacity Limitation ”.

2. On page 55522, in the first column, second full paragraph, the last line is corrected to read, “applicants in Category 4.”.

Accordingly, 26 CFR part 1 is corrected by making the following correcting amendments:

On November 7, 2023, the Bureau published an interim final rule (IFR) in the Federal Register at 88 FR 76656 that made technical changes to how the Bureau processes Federal Tort Claims Act (FTCA) claims. This document corrects inadvertent errors and omissions in its regulations caused by errors in that rule.

First, this document revises the headings of two paragraphs in § 543.31 to conform with the statement-like form of other paragraph headings we amended in the IFR. Thus, the heading of § 543.31(a) should be changed from “Who may file a claim?” to “Claimant,” and the heading of § 543.31(b) should be changed from “Where do I obtain a form for filing a claim?” to “Claim form.”

Second, the third instruction of the IFR revised paragraphs (a) through (d) and (f) of § 543.32. Paragraphs (g) and (h) were missing from that instruction, while they were correctly included in the amendatory language. In addition, the heading to paragraph (e) needs to be changed to conform with the declaratory headings of the other paragraphs. Finally, paragraph (i) needs to be deleted because, with the revisions to the other paragraphs, paragraph (i) is redundant.

Accordingly, 28 CFR part 543 is corrected by making the following correcting amendments:

Table of Contents I. Introduction II. Section-by-Section Analysis III. Executive Order 12866 (Regulatory Planning and Review), Executive Order 14094 (Modernizing Regulatory Review), and 13563 (Improving Regulation and Regulatory Review) IV. Regulatory Flexibility Analysis (RFA) and Small Business Regulatory Enforcement Fairness Act (SBREFA) and Executive Order 13272: Proper Consideration of Small Entities in Agency Rulemaking V. Paperwork Reduction Act of 1995 VI. Other Regulatory Considerations VII. References I. Introduction A. Regulatory Authority

This final rule is issued under section 101 of the Federal Mine Safety and Health Act of 1977 (Mine Act), as amended. 30 U.S.C. 811.

A variety of mining equipment is used at surface mines or in surface areas of underground mines. Surface mining vehicles can be very large (many can be several stories tall) and are capable of destroying smaller vehicles that cannot be seen by the vehicle operators. Accidents involving mining equipment are a leading cause of fatalities at mines, although fatalities involving powered haulage equipment, a type of mobile equipment, decreased in 2022. 1 2 To reduce the number of accidents, injuries and fatalities at mines, MSHA implemented several powered haulage initiatives—for example, conducting safety awareness campaigns, providing powered haulage guidance and technical assistance, and disseminating training materials and best-practices information that addresses powered haulage safety. Despite these efforts, in 2023, machinery (mobile) accidents have still accounted for a significant number of mining fatalities.

On July 20, 2021, for example, MSHA hosted a national “Stand Down for Safety Day” to focus on powered haulage accidents and vehicle rollovers to help educate miners, save lives, and prevent injuries. 3 On that day, Mine Safety and Health Enforcement (MSHE) and Educational Field and Small Mine Services (EFSMS) staff visited mines to meet with miners and operators to increase awareness of powered haulage hazards and the need to be familiar with and follow mine-safety best practices.

On February 28, 2022, MSHA announced its “Take Time, Save Lives” campaign to remind mine operators to train miners and ensure miners can take their time to prevent accidents and injuries and to save lives. 4 As part of the campaign, mines across the country received a poster to display at mine sites with steps operators and miners can take to stay safe, including actions related to working around powered haulage equipment and wearing seat belts.

In addition, over the years, MSHA has developed a wide variety of mine safety and health materials and has made them available on the Agency's website ( http://www.msha.gov ) and mobile app. 5 These materials are intended to assist trainers and mine operators in promoting a safe and healthy environment, and among other topics, they cover safety topics related to mobile equipment at surface mines. For example, MSHA issued Powered Haulage Equipment Guidance in 2021 intended to help prevent accidents associated with working with, on, or near powered haulage equipment. 6 MSHA also launched an enforcement initiative focused on powered haulage by issuing guidance on preventing accidents and meeting with mine personnel to emphasize best safety practices and training.

In April 2022, to complement the Agency's awareness initiatives, the Agency implemented an Enhanced Enforcement Program to help improve safety and health in the mining industry. As a part of MSHA's regular inspections, this program focuses on task training and hazard training for customer and contract truck drivers and task training for managers and supervisors who perform mining tasks. For example, MSHA inspectors will observe truck drivers and focus on enforcing existing standards necessary to ensure that they perform tasks in a safe manner at mines.

As part of its overall effort to improve safety in the use of mining equipment, MSHA published a request for information (RFI) on June 26, 2018, entitled Safety Improvement Technologies for Mobile Equipment at Surface Mines, and for Belt Conveyors at Surface and Underground Mines (83 FR 29716). The RFI focused on technologies for reducing accidents involving mobile equipment at surface mines and surface areas of underground mines and belt conveyors at surface and underground mines. The RFI requested information on what types of engineering controls are available, how to implement engineering controls, and how these controls could be used on mobile equipment and belt conveyors to reduce accidents, fatalities, and injuries. MSHA sought information on technologies, controls, and training that provide additional protection from accidents related to mobile equipment operation and working near or around belt conveyors.

To encourage additional public participation, the Agency held six stakeholder meetings and one webinar in August and September 2018. The meetings were held in Birmingham, Alabama; Dallas, Texas; Reno, Nevada; Beckley, West Virginia; Albany, New York; and Arlington, Virginia.

Commenters responding to the RFI supported MSHA's focused efforts to improve miner safety related to the operation of mobile equipment at surface mines and in surface areas of underground mines. Some emphasized the use of technologies to achieve this goal, such as the use of new technologies and the use of current technologies ( e.g., collision avoidance systems, collision warning systems, and seat belt warning signals used in automobiles). Others supported the importance of non-technological interventions, such as safety programs, to bring about behavioral and cultural changes. Commenters differed in how technological and non-technological interventions should be implemented. Some commenters noted that the application of engineering controls or technologies needs further review by MSHA and the National Institute for Occupational Safety and Health (NIOSH) before any regulatory changes are made. Other commenters suggested that the use of new technologies has the best outcomes when mine operators and their employees partner with other stakeholders such as NIOSH and equipment manufacturers.

In addition, one commenter underscored the importance of safety culture at a workplace. This commenter observed that mine operators who develop and implement safety programs do so with the goal of preventing injuries, fatalities, and the suffering these accidents cause miners, their families, and their communities. The commenter noted that for these mine operators, preventing harm to their miners is more than just compliance with safety requirements; it reflects a culture of safety. According to the commenter, this culture of safety derives from a commitment to a systematic, effective, and comprehensive approach to safety management at mines with the full participation of miners.

On September 9, 2021, MSHA published the proposed rule, Safety Program for Surface Mobile Equipment (86 FR 50496). In addition to information gathered from stakeholders who commented on the RFI, MSHA based the proposed rule on best practices and guidance on workplace safety programs. 7 The comment period closed on November 8, 2021. On December 20, 2021, in response to a public request, MSHA reopened the rulemaking record for additional comments, and the Agency held a virtual public hearing on the proposed rule on January 11, 2022 (86 FR 71860). The comment period closed on February 11, 2022.

MSHA's proposed rule addresses hazards related to surface mobile equipment (except belt conveyors) used at surface mines and surface areas of underground mines. Surface mobile equipment in the proposed rule refers to wheeled, skid-mounted, track-mounted, or rail mounted equipment capable of moving or being moved and any powered equipment that transports people, equipment, or materials, excluding belt conveyors, at surface mines and surface areas of underground mines. Examples of this equipment include bulldozers, front-end loaders, skid steers, excavators, draglines, graders, and haul trucks.

The proposed rule would require a written safety program for operators employing six or more miners. The proposed written safety program would list actions that mine operators would take to identify hazards and reduce risks, develop equipment maintenance and repair schedules, evaluate technologies, and train miners. The proposal would provide mine operators with the flexibility to tailor the written safety program to meet the needs of their operations and unique mining conditions. Under the proposal, mine operators would be required to evaluate and update the written safety program whenever necessary to appropriately manage safety risks associated with their surface mobile equipment.

MSHA received comments on the proposed rule from miners, safety associations, mining associations, mining companies, manufacturers, labor unions, and trade associations. (Public comments and supporting documentation submitted were posted on MSHA's website and at www.regulations.gov, along with the transcript from the public hearing.) Commenters supported MSHA's efforts to ensure the safety of all miners from powered haulage accidents. After considering the comments, for the reasons discussed further below, MSHA is adopting the proposed rule with modifications. MSHA has addressed comments more fully in the next section, Section II, Section-by-Section Analysis, of this preamble.

Final §§ 56.23000, 57.23000, and 77.2100 address the purpose and scope of the final rule. Like the proposal, final §§ 56.23000, 57.23000, and 77.2100 state that the purpose of the safety program is to reduce the accidents, injuries, and fatalities related to the operation of surface mobile equipment, promote and support a positive safety culture, and improve miners' safety at the mine. Unlike the proposal, all mine operators are required to develop, implement, and update a written safety program for surface mobile equipment used at surface mines and surface areas of underground mines. The final rule is changed from the proposal to cover operators with five or fewer miners. After reviewing comments and data, the Agency determined that operators of these mines need to develop a written safety program to address surface mobile equipment at their operations to protect their miners. MSHA intends to provide compliance assistance where necessary.

In the proposal, §§ 56.23000, 57.23000, and 77.2100 would require mine operators with six or more miners to develop a written safety program. In the proposed rule, MSHA also requested comment on potentially requiring mines with five or fewer miners to develop a written safety program. Safety Program: Surface Mobile Equipment, 86 FR 50,496, 50,500 (Sept. 9, 2021).

Commenters stated that all mine operators, regardless of the number of miners employed, should be required to have a written safety program and that miners at small operations need the same protections as miners at larger operations. Several commenters stated that, regardless of whether a facility employs one miner or one hundred miners, each individual should be protected equally. One commenter stated that even though data may indicate that serious accidents occur less frequently at smaller operations, all miners and operations should still be covered because the hazards involving surface mobile equipment pose a risk for all miners. Several commenters stated that applying the rule to all mines, regardless of the number of miners employed, will minimize confusion, enhance safety practices, and increase consistency across mines and throughout MSHA enforcement. One commenter stated that the Mine Act does not set a threshold for how many miners must be employed at a mine in order for it to be subject to a standard, and as such, operators with five or fewer miners should not be excluded. Several commenters supported MSHA's goal to minimize the burden on small operations, but they did not believe that a mobile equipment safety program will present an undue economic burden on operators with five or fewer miners if MSHA provides clear guidance regarding what is expected.

In response to comments, MSHA reviewed recent data from 2011 to 2020 on fatalities and injuries and accident investigation reports. Based on that review, MSHA determined that the fatality rate for mines with five or fewer miners is greater than that for larger mines. MSHA found that from 2011 to 2020, the average fatality rates (or fatal incidence rate) per 200,000 working hours were as follows: 0.0227 at mines with 5 or fewer employees; 0.0167 at mines with 6 to 20 employees; 0.0103 at mines with 21 to 100 employees, and 0.0079 at mines with more than 100 employees. See Table II-1.

Based on the analysis and comments, the final rule requires a written safety program for all mines. MSHA agrees with comments that the Mine Act requires that miners' safety and health must be protected no matter how many employees work at the mine. The Agency concludes that applying the final rule to all mines will provide improved safety for all miners.

MSHA will provide compliance assistance through the Agency's EFSMS staff to all mines. MSHA will also encourage state grantees to focus on providing training to address hazards and risks involving surface mobile equipment in small mining operations. In addition, MSHA will provide assistance to small mine operators in the form of additional training materials, education, technical assistance, and work with mining industry stakeholders as it develops materials and templates to assist mine operators. Also, MSHA is implementing a 6-month delayed compliance date from the effective date to provide mine operators, especially small mine operators, sufficient time to identify and acquire, if necessary, the needed resources to comply with this final rule.

The proposed rule did not include belt conveyors in the definition of surface mobile equipment. MSHA received comments on whether to include or exclude belt conveyors from the definition of surface mobile equipment and whether belt conveyors should be covered under this rule. Some commenters stated that belt conveyors should be included in the scope of the rule and that a written safety program should be developed and implemented to include them. One commenter reviewed accident and injury data and stated that many fatalities are associated with belt conveyers. Several commenters stated that technologies and controls exist that can help prevent accidents, for example: devices that can sense a miner's presence in hazardous locations, properly installed machine guards, and properly locked-out and tagged-out machines undergoing maintenance. According to these commenters, MSHA should require a written safety program for belt conveyors just as it is requiring one for mobile and powered haulage equipment.

Several commenters agreed with MSHA's exclusion of belt conveyors from the proposed rule. The commenters stated that belt conveyors should be addressed separately from powered haulage vehicles because they are very different types of equipment and keeping them separate would increase clarity.

Based on the comments, the final rule, like the proposal, excludes belt conveyors from the definition of surface mobile equipment. Belt conveyors present different safety hazards from those associated with surface mobile equipment. Belt conveyors range from a single belt to a series of belts spanning miles. All conveyor systems have inherent dangers while in motion. Belt conveyor accidents predominantly involve entanglements in equipment whereas accidents related to other mobile equipment involve striking, colliding, falling, or overtravel while the equipment is in operation. MSHA continues to believe that the safety issues surrounding the operation of belt conveyors can be better addressed through existing standards ( e.g., §§ 56/57.14107 and 56/57.14112 for moving machine parts and construction and maintenance of guards), best practices, and training. As MSHA does with many other types of mining equipment, the Agency provides training resources to help operators and miners that include best practices for working safely around conveyor systems. These best practices are available on the Agency's website at http://www.msha.gov.

MSHA proposed to require a written safety program for surface mobile equipment at surface mines and surface areas of underground mines. Several commenters stated that all areas of underground mines—meaning both surface and underground areas of underground mines—should be included in the scope of the proposed rule. Commenters stated that powered haulage accidents happen in underground areas of underground mines, not just surface areas. This observation, a commenter pointed out, is based on MSHA accident data. One commenter stated that underground mining equipment should be expressly excluded from the proposed rule even if the equipment is operated on surface areas.

Like the proposal, the final rule applies to surface mobile equipment used at surface mines as well as surface areas of underground mines. Surface mobile equipment being used in underground mines and only brought to the surface for maintenance or repair, for example, is not included in the scope of the final rule.

A large amount of surface mobile equipment operates at many surface mines and surface areas of underground mines, which creates common hazards such as striking, collision, and falling. Surface mobile equipment tends to be complex and large in size (compared to mobile equipment used at underground mines), which generates some unique hazards, such as large blind spots for equipment operators. The final rule applies only to surface mobile equipment.

As is the Agency's practice, MSHA will continue to work with operators and miners in underground mines to deliver training and best practice materials to prevent accidents involving mobile equipment in underground areas and to provide safety protections for miners at these mines.

Final §§ 56.23001, 57.23001, and 77.2101 continue to define the terms responsible person and surface mobile equipment in the same way as defined in the proposed rule.

MSHA proposed to define a responsible person as a person with authority and responsibility to evaluate and update a written safety program for surface mobile equipment. MSHA believes that designating a person with authority and responsibility to evaluate and update the safety program as necessary will help ensure the successful development and maintenance of a safety program that addresses and reduces the likelihood of surface mobile equipment hazards at a particular mine. This individual should be able to communicate the operator's commitment to safety and the importance of miners' involvement in the program to prevent or mitigate hazards. The responsible person must communicate the goals of the safety program to all miners. The responsible person will need to have the experience and knowledge about mining conditions, including surface mobile equipment, necessary to evaluate and update the written safety program.

MSHA received comments on this definition. Commenters indicated a preference for removing or redefining the term. Some commenters stated that the definition is redundant and should be deleted, and that operators are already required to designate a responsible person for health and safety purposes. Several commenters discussed the similarities between the responsibilities and liability burdens of the mine operator, as compared to the proposed definition of a responsible person. One commenter stated that the definition should be deleted as it serves no purpose.

Other commenters brought up the feasibility of assigning the duties to a single individual. For example, one commenter stated its view that the proposed rule would require a person that has the knowledge to identify hazards on every piece of mobile equipment, the authority to make high-level financial decisions, and the responsibility for any shortfalls in the program. Still other commenters questioned the consequences of assigning the title of “responsible person” to a single individual because that individual could become temporarily or permanently unavailable. One commenter stated that MSHA should amend this language to clearly allow for multiple persons to be designated as a responsible person. In the commenter's view, there are many practical reasons to have additional people in this position. For example, if one designee is out sick, on vacation, or leaves the company, there would still be a designated responsible person on-site.

In response to the comments, the final rule requires that each operator designate at least one responsible person to evaluate and update the written safety program. Under the final rule, the operator can designate one person or multiple persons so long as the designated persons have the authority and responsibility to evaluate and update the written safety program.

In addition, the final rule, like the proposed rule, defines surface mobile equipment as wheeled, skid-mounted, track-mounted, or rail-mounted equipment capable of moving or being moved, and any powered equipment that transports people, equipment, or materials, excluding belt conveyors, at surface mines and surface areas of underground mines. This definition is adapted from the current definition in 30 CFR 56.2 and 57.2 for metal and nonmetal mines: mobile equipment means “wheeled, skid-mounted, track-mounted, or rail-mounted equipment capable of moving or being moved.”

MSHA received comments on the proposed definition of surface mobile equipment. Several commenters requested that MSHA clarify the type of equipment that would meet the proposed definition. One commenter stated that equipment such as push carts, welding carts, cylinder carts, and basic hand trucks would be subject to the proposed rule. The commenter stated that the rationale to include this type of equipment under the definition is unclear. Another commenter stated that certain skid-mounted equipment such as light towers and substations could be covered unintentionally. Another commenter stated that it is unclear whether small boats, portable crushers, dredges, etc., are included.

Several commenters requested further clarification from MSHA on the types of equipment to be included in the definition. Commenters requested that MSHA provide a finite list of equipment that would be included or exempted from the rule. One commenter suggested that MSHA create a supplementary, clarifying guidance document.

After reviewing all the comments, MSHA concludes that the definition in this final rule is sufficiently clear about what types of surface mobile equipment are subject to a written safety program. Surface mobile equipment excludes any manually powered tools, such as wheelbarrows, hand carts, push carts, welding carts, cylinder carts, basic hand trucks, or dollies for the purposes of this written safety program. This definition is consistent with the currently enforced definition in 30 CFR parts 56 and 57.

Final §§ 56.23002(a), 57.23002(a), and 77.2102(a), like the proposal, require each mine operator to develop and implement a written safety program no later than 6 months after the effective date of the final rule. Three issues raised by commenters are discussed below.

Commenters stated that the proposed rule is unclear as to whether or not contractors are subject to the requirements. Some commenters stated that the proposed rule is silent on whether it covers contractor equipment and how such coverage would be implemented in a practical sense, and one commenter said that this silence would lead to enforcement actions against the mine and/or contractors for inconsistencies in how they would comply with the proposed requirements. Several commenters stated that MSHA should clarify how contractor programs should be integrated with operators' on-site safety programs.

Commenters requested that MSHA clarify that contractors are considered operators, and thus would need to have their own written safety program. Several commenters stated that the definition of “operator” in section 3(d) of the Mine Act includes “any independent contractor performing services or construction” at a mine. 30 U.S.C. 802(d). Several commenters stated that MSHA's regulations at 30 CFR part 45, which sets forth procedural requirements for independent contractors working at mine sites, state that such requirements exist “to facilitate implementation of MSHA's enforcement policy of holding independent contractors responsible for violations committed by them and their employees.”

Several commenters stated that it would be untenable to require production operators to account for contractor equipment in their own safety programs. According to the commenters, contractors often have their own equipment and specialized knowledge, so that it would be impractical to require the operator to be responsible for the contractors' equipment.

MSHA's intent in the proposed rule was that an operator would mean “any owner, lessee, or other person who operates, controls, or supervises a coal or other mine or any independent contractor performing services or construction at such mine” as stated in section 3(d) of the Mine Act. To facilitate implementation of MSHA's enforcement policy with respect to certain independent contractors, MSHA published regulations in 30 CFR part 45 related to the responsibility of independent contractors that met the requirements of part 45.

Consistent with MSHA's part 45 regulations and the Agency's longstanding policy regarding independent contractors, this final rule requires operators, including contractors with a part 45 identification number, to develop and implement a written safety program addressing surface mobile equipment. MSHA has a long history and practice of enforcing its standards and regulations against operators and independent contractors and believes that the industry is familiar with and understands this history and practice. Under this final rule, MSHA will treat operators and part 45 independent contractors consistent with the definition in the Mine Act and the Agency's longstanding history and practice.

MSHA expects that a majority of the Part 45 independent contractors will develop and implement their own written safety programs addressing their surface mobile equipment and follow the site-specific requirements, as necessary, in the operators' written safety programs. In some situations, operators may choose to integrate the independent contractors' written safety programs into their programs. No matter what approach is used, MSHA expects that, in all cases, operators and independent contractors will communicate and coordinate with each other, as appropriate, to ensure that miners' safety and health is protected.

Final §§ 56.23002(b), 57.23002(b), and 77.2102(b), similar to the proposal, require each mine operator, within 6 months after the effective date of the final rule, to designate at least one responsible person to evaluate and update the written safety program. As discussed in the definition section, a responsible person is a person with authority and responsibility to evaluate and update a written safety program for surface mobile equipment.

The final rule implements a 6-month delayed compliance date from the effective date. Commenters provided varying suggestions on the proposed effective date. Some commenters suggested that all mine operators should have an additional 6 to 12 months without receiving citations relating to this rule, for a total of up to 18 months delayed effective date. Another commenter suggested a longer time period for only those mines that meet the Small Business Administration's size standards; therefore, a 6-month delay (as proposed) for larger entities and up to an 18-month delay for smaller entities. Some commenters agreed with MSHA's proposal that 6 months from the effective date of the final rule is sufficient time for operators to develop a written safety program.

The final rule includes a delayed compliance date to allow for development and implementation of the written safety program for surface mobile equipment. After considering comments and reviewing data on accidents, injuries, and fatalities involving surface mobile equipment, MSHA determined that 6 months is a reasonable timeframe for the development and implementation of the safety program for all mines, regardless of size. MSHA believes that the 6-month time frame gives operators sufficient time to develop a meaningful written safety program, with input from miners and their representatives. MSHA has offered and will continue to offer materials and information that operators can use in developing and implementing a written safety program. MSHA will also work with operators, miners, and their representatives as well as other stakeholders in the mining industry ( e.g., contractors) to develop written safety program templates, as well as best practices and guidance on the development, implementation, and evaluation of safety programs.

The proposed rule did not require MSHA approval of the operator's written safety program. Commenters provided their views on whether MSHA should require its approval of operators' written safety programs. Several commenters stated that MSHA's approval of the written safety program is necessary, and that not requiring MSHA approval would lead to inconsistent enforcement by MSHA inspectors. One commenter stated that approval by MSHA should be required because the written safety programs that are developed without MSHA's oversight or approval would be, in the commenter's view, based on the operator's convenience, not the miners' health and safety. One commenter stated that MSHA approval of the operator's program is needed before it is implemented to ensure the adequacy of the individual, site-specific program and to ensure that mine operators have the opportunity to be alerted to any possible deficiencies in their program prior to MSHA approval. One commenter stated that MSHA already approves a number of written programs and plans submitted by mine operators, such as roof control plans, ground control plans, and ventilation plans. The commenter further stated that without MSHA oversight, mine operators will have generic programs that will not be mine-specific or include meaningful participation from miners and their representatives.

Other commenters supported MSHA's proposal that required no Agency approval of written safety programs. One commenter stated that they appreciate MSHA proposing to require a written safety program without the Agency's approval, rather than with the Agency's approval. Another commenter agreed that not requiring approval is a wise decision because it would be burdensome for MSHA to approve tens of thousands of programs.

After considering all comments, MSHA has determined that an operator's written safety program will be appropriately reviewed by MSHA during regular inspections. During the inspection, MSHA will review the written safety program to determine if it reflects actions that identify and address surface mobile equipment hazards at mine sites and to verify whether input from miners and their representatives was sought. This approach will also allow the Agency to ensure that the written safety program addresses hazards identified by mine operators and miners. MSHA will also determine whether the written safety program is adequately evaluated and updated. In light of the Agency's inspection presence, MSHA has determined that Agency approval of the written safety program is not needed.

Like the proposal, final §§ 56.23003(a), 57.23003(a), and 77.2103(a) list general, performance-based requirements for the written safety program. Under this final rule, an operator's safety program must include four types of actions the operators will take to reduce accidents, injuries, and fatalities and to improve miners' safety. As discussed earlier, this and other provisions in the final rule, unlike the proposed rule, clarify the term “operator” or “operators,” to be consistent with section 3(d) of the Mine Act.

Several commenters stated that the written safety program requirement is redundant with provisions already required in the CFR and does not provide a new or strategic focus that advances mobile equipment safety. These commenters stated that there are existing regulations in part 56 that require mine operators to identify and correct hazards in all work areas and for all equipment, including surface mobile equipment, such as § 56.18002 on the examination of working places and § 56.14100 on safety defects; examination; and correction of records. One commenter stated that the requirements of this section are redundant with the training requirements already set forth in part 46, and another commenter stated these requirements are redundant with training requirements already set forth in part 48. One commenter requested clarification on the specifics of the documentation requirement for the review and collection of this information. For example, what type of information would meet the requirement, how should it be maintained, for how long would it need to be kept, and how would MSHA evaluate it for compliance? Another commenter also requested additional guidance on the types of safety hazards that should be included. One commenter asked how this requirement could be enforced. Finally, one commenter fully supported the inclusion of this requirement.

After reviewing comments and relevant information, MSHA believes that structuring the final rule to include a performance-based requirement to identify and analyze hazards is more appropriate than a prescriptive requirement. The performance-based approach in the final rule allows operators the flexibility to devise and tailor a safety program that is appropriate for their specific and unique mining conditions and operations. These actions could include review of accident data and information on near misses and any operational or maintenance accidents at their mines. For example, under 30 CFR part 50, mine operators are already required to submit a report of each accident, injury, and illness to MSHA within 10 working days after an accident or occupational injury occurs or an occupational illness is diagnosed. Based on such information and data, mine operators will be able to develop a program that more specifically addresses conditions at their mines; mining equipment, work locations, and tasks at their mine site; and measures to eliminate, prevent, or mitigate identified hazards. Regarding the comment asking how this information should be maintained and for how long it would need to be kept, further discussion of records and inspection requirements is located elsewhere in this preamble under §§ 56.23004, 57.23004, and 77.2104.

Final §§ 56.23003(a)(1), 57.23003(a)(1), and 77.2103(a)(1), like the proposal, require that the written safety program include actions the operator will take to identify and analyze hazards and reduce the resulting risks related to the movement and operation of surface mobile equipment. Operators are required to identify and analyze hazards relevant to surface mobile equipment and to take actions to reduce the site-specific risks so that their written safety programs can be tailored to their unique mining operations and conditions. Actions that mine operators may take include enhanced administrative controls such as increased use of signage and procedural changes to tasks that remediate identified hazards. Other actions may include visibility studies to identify inherent blind spot areas around mobile equipment and use of visibility enhancing devices such as flags and additional mirrors to minimize these areas. Mine operators may choose to change traffic patterns, implement dispatchers for certain areas of a mine, and limit or prohibit small vehicular or foot traffic in identified high risk areas.

Final §§ 56.23003(a)(2), 57.23003(a)(2), and 77.2103(a)(2), like the proposal, require that the written safety program include actions the operator will take to develop and maintain procedures and schedules for routine maintenance and non-routine repairs for surface mobile equipment.

Commenters stated that this requirement is redundant when compared to existing part 56 and part 57 regulations. Likewise, another commenter stated that § 77.404 already addresses the requirements that mobile and stationary machinery and equipment be maintained in safe operating conditions. Another commenter stated that §§ 77.1600-77.1607 includes extensive rules that address loading and haulage, including traffic controls, transportation of persons, berms, inspection and maintenance, and operation.

Another commenter expressed a concern about the ambiguity of the requirement, stating that inspectors may be subjective and issue violations for failure to follow manufacturers' recommendations. Several commenters stated that operators should have additional flexibility when it comes to manufacturers' recommendations. In these commenters' view, manufacturers' recommendations for maintenance and repairs are often not reflective of how the equipment is used at a given operation. A commenter noted that recommendations from the manufacturer are a valuable resource for equipment operators and maintenance personnel, but often are designed to avoid legal challenges rather than maximize safe operation. One commenter requested that this requirement for maintenance and repairs apply to the safe operation of the equipment, rather than all maintenance and repairs in general. Another commenter stated that MSHA should make clear that this section does not require any new maintenance or repair procedures, but requires only that the facility's procedures be reflected (or referenced) in a written program.

Under the final rule, MSHA does not intend for operators to develop new maintenance and repair procedures, unless operators do not have these in place already. Operators may decide to modify existing maintenance and repair procedures based upon newly conducted risk assessment findings. The procedures and schedules for maintenance and repairs for surface mobile equipment developed for the written safety program can reflect or reference the operator's existing procedures and schedules.

Final §§ 56.23003(a)(3), 57.23003(a)(3), and 77.2103(a)(3), like the proposed rule, require that the written safety program include actions the mine operator will take to identify currently available and newly emerging feasible technologies that can enhance safety and evaluate whether to adopt them. Examples of these technologies could include seat belt interlocks that affect equipment operation when a seat belt is not fastened; seatbelt notification systems that alert management when the seatbelts are not worn; collision warning systems and collision avoidance systems that may prevent accidents by alerting equipment operators to hazards located in blind areas; technologies that use Global Positioning Systems to provide equipment operators with information regarding their location when pushing and dumping material; as well as cameras, curvilinear mirrors, and other vision enhancements (86 FR 50500).

Commenters stated that this requirement is ambiguous, burdensome, and redundant, and should be stricken from the rule. Several commenters stated that: the proposal does not appear to require mine operators to implement newly emerging technologies, and, instead, it appears to require evaluations. They further stated that most mine operators likely already evaluate newly emerging technologies to save money and improve safety. Some commenters were concerned that certain terminology in the proposal is subjective. For example, commenters stated that MSHA needs to elaborate on what types of actions operators should take to “evaluate” how “newly emerging feasible technologies” would “enhance” safety. Other commenters stated that there are many areas of concern related to testing and implementing new technologies into existing equipment, potentially creating safety hazards. Another commenter stated that new technologies often have problems when they are initially developed. For example, the commenter noted that when airbags were first released there were issues causing injuries, and thus they had to be redesigned. Another commenter stated that MSHA should make clear that the rule does not require the adoption of any particular technology but is strictly a requirement that the operator have a procedure to identify and evaluate potentially useful new technology.

After considering all comments, the final rule is unchanged from the proposal, and it requires that the operator identify and evaluate currently available and newly emerging feasible technologies that can enhance safety at the mines. MSHA's intent is that operators consider feasible technologies that are capable of being used successfully at that mine. MSHA recognizes the safety benefits of new and emerging technologies related to surface mobile equipment. MSHA believes that operators can typically determine what types of new or existing technologies that they need to enhance safety at their operations. MSHA will offer educational assistance on currently available and newly emerging technologies in a number of ways, including through EFSMS, industry stakeholders, quarterly stakeholder calls and stakeholder meetings, safety and health training workshops ( e.g., Training Resources Applied to Mining (TRAM) and Spring Thaw Training Workshops), guidance documents, and Agency website and mobile app resources. Also, as part of the Agency's compliance assistance efforts, MSHA will work with operators and provide information and technical assistance that will help them identify control options and the use of new technologies to prevent accidents and injuries. MSHA will also encourage its state grantees to focus on providing training to address feasible technologies involving surface mobile equipment in mining operations.

Final §§ 56.23003(a)(4), 57.23003(a)(4), and 77.2103(a)(4), like the proposal, require that the written safety program include actions the operator will take to train miners and other persons at the mine necessary to perform work to identify and address or avoid hazards related to surface mobile equipment.

Several commenters stated that they already comply with part 46 requirements and that this section is another example of regulatory redundancy and does not provide a new or strategic focus to advance mobile equipment safety. One commenter suggested that MSHA make clear that the mobile equipment program can refer to other sections of regulations relating to mobile equipment and can incorporate these by reference, for example §§ 46.5(b)(2), 46.6(b)(2), and 46.8(c). Another commenter requested that the Agency disambiguate the language, “other persons at the mine necessary to perform work,” by providing more precise language. Otherwise, for training purposes, the language effectively would expand the definition of “miner” to all employees.

After reviewing the comments, MSHA clarifies that mine operators will only need to integrate existing training provisions, as applicable, into the written safety program. The Agency previously described the intended audience for site-specific hazard awareness training in the final rule for Training and Retraining of Miners Engaged in Shell Dredging or Employed at Sand, Gravel, Surface Stone, Surface Clay, Colloidal Phosphate, or Surface Limestone Mines (64 FR 53080, September 30, 1999). In that final rule, MSHA required that “. . . hazard awareness training be appropriate for the individual who is receiving it and that the breadth and depth of training vary depending on the skills, background, and job duties of the recipient. For example, it may be appropriate to provide hazard awareness training to customer truck drivers by handing out a card to the drivers alerting them to the mine hazards or directing them away from certain areas of the mine site. More extensive hazard awareness training might be needed for an equipment manufacturer's representative who comes onto mine property to service or inspect a piece of mining equipment. Although this individual may not be on mine property for an extended period, the person's exposure to mine hazards may warrant more training. Appropriate hazard awareness training would typically be more comprehensive for contractor employees who fit the definition of `miner' because they are engaged in mining operations. These employees receive comprehensive training but also need orientation to the mine site and information on the mining operations and mine hazards.” (64 FR 53128) Similarly, under this final rule, the written safety program must include the actions that the mine operator will take to train miners and other persons at the mine necessary to perform work to identify and address or avoid hazards related to surface mobile equipment.

Under the final rule, mine operators will need to integrate their existing training procedures for miners and other persons at the mine necessary to perform work into their written safety program to address and avoid hazards related to surface mobile equipment.

Final §§ 56.23003(b), 57.23003(b), and 77.2103(b), similar to the proposal, require the responsible person to evaluate and update the written safety program for the mine at least annually, or as mining conditions or practices change that may adversely affect the health and safety of miners or other persons, as accidents or injuries occur, or as surface mobile equipment changes or modifications are made. The final rule is clarified in two ways. First, the written program must be evaluated and updated “at least” annually. This clarification indicates that an annual evaluation and update is the minimum, and more frequent evaluations and updates of the written safety program must be done, if necessary. Second, the final rule specifies that the evaluation and update must be done when changes in the mining conditions or practices “may adversely affect the health and safety of miners or other persons.” MSHA acknowledges that not all changes to mining conditions or practices warrant updates to the written safety program. This is similar to MSHA's existing requirements in §§ 56/57.18002 that require for each working place in metal and nonmetal (MNM) mines an examination to be conducted for conditions that may adversely affect safety or health.

One commenter stated that requiring the responsible person to evaluate and update the written safety program is redundant and already covered by part 56 requirements. Other commenters recommended that the proposed language regarding “surface mobile equipment changes or modifications” be removed. The commenters believe that any significant changes in equipment are covered under the provision of “mining practices” changing. In their view, this deletion would capture the large-scale changes the Agency intended to cover without including small, insignificant changes. These same commenters also recommended removing the term “injuries” from the proposal because most powered haulage injuries cannot meaningfully be addressed in a safety program. The commenters stated that, for example, an equipment operator who slams a finger in the door of a pickup truck or pulls a muscle climbing on or off a loader has sustained a powered haulage injury, but they are not the types of injuries that warrant re-evaluation of the program. The commenters stated that “accidents,” however, should be retained and that yearly is a reasonable timeframe to reevaluate the program. Other commenters suggested that MSHA revise the requirement to read: “evaluate and update the written safety program at least annually or whenever necessary to manage safety risks associated with their surface mobile equipment appropriately.”

Except the clarifications described earlier, this requirement is the same as the proposal. As explained in the previous section, MSHA believes that given the type of authority and responsibility, it is a responsible person who must evaluate and update the written safety program. In addition, as stated in the proposal, best practices shown by NIOSH, OSHA, and other safety standards organizations include ongoing evaluations of workplace activities and processes to address safety proactively and to find and fix hazards before injuries and fatalities happen. Moreover, in response to some commenters recommending that the term injuries be removed from the requirements, MSHA believes that the term is still needed because injuries are an indicator of hazards at mines that could result in further injuries and fatalities. The final rule also clarifies that the written safety program must be evaluated and updated when mining conditions and practices change that may adversely affect the health and safety of miners.

Final §§ 56.23003(c), 57.23003(c), and 77.2103(c) is a provision that requires operators to consult with miners and their representatives in developing and updating the safety program. These requirements are consistent with existing obligations to consult with miners and representatives and MSHA's long-standing recognition that such consultation is vital for ensuring the efficacy of safety programs. Under existing requirements, operators already must (in many cases) provide miners and miners' representatives the opportunity to comment on or otherwise participate in these existing processes. See, e.g., 30 CFR 46.3(g), 48.23(d) and (j)(1), and 56/57.18002. As these existing processes are expected to be referenced in developing and updating the safety program, miners and their representatives similarly should be consulted in developing and updating the program. In drafting the proposal, MSHA intended that operators would seek input from miners and their representatives in the development and updating of a meaningful safety program, given their existing involvement with most of the component parts of the program. The proposal also provided that the responsible person “should be able to communicate the operator's commitment to safety and the importance of miners' involvement in the program to prevent or mitigate hazards.” 86 FR 50500. In addition, commenters requested that miners and their representatives participate in the development of the written safety program. MSHA includes this provision in the final rule to recognize the comments and to be consistent with the Agency's intent in the proposal and with the Mine Act. In drafting the proposal, consistent with the Agency's long-standing practice and section 2(e) of the Mine Act, MSHA intended that miners would be involved in the development and updating of the program, although it was not discussed in the preamble.

The Mine Act provides miners and their representatives a right to participate in various safety and health activities. Some examples are as follows. Section 2(e) provides that “the operators of [coal or other] mines with the assistance of the miners have the primary responsibility to prevent the existence of [unsafe and unhealthy] conditions and practices in such mines.” Section 101(c) provides that the representative of miners may petition the Secretary (of Labor) to “modify the application of any mandatory safety standard to a coal or other mine if the Secretary determines that an alternative method of achieving the result of such standard exists which will at all times guarantee no less than the same measure of protection afforded the miners of such mine by such standard . . .” Section 103(f) provides that miners' representatives “be given an opportunity to accompany the Secretary or authorized representative during the physical inspection of any coal or other mine . . .” Section 103(g)(1) provides a representative of miners or a miner in case there is no representative the “right to obtain an immediate inspection by giving notice to the Secretary or authorized representative” that a violation of the Mine Act or its standards, or an imminent danger exists. Section 105(c) provides miners and their representatives the right to file a discrimination complaint with MSHA if they believe they have been discharged, discriminated against, or interfered with for complaining of “an alleged danger or safety or health violation in a coal or other mine”. Further, as stated by the Senate Committee on Human Resources in keeping with a purpose of the Mine Act: “If our national mine safety and health program is to be truly effective, miners will have to play an active part in the enforcement of the Act.” S. Rep. No. 95-181, 95th Cong., 1st Sess. at 35 (1977).

Based on MSHA's experience and past practice, and consistent with the statutory intent of the Mine Act, miners and their representatives are involved in many aspects of MSHA's enforcement program and standards. MSHA is persuaded by commenters who stated that for safety programs to be successful, there must be active and meaningful participation from miners. The final rule makes explicit that miners provide input in developing and updating the written safety program.

Final §§ 56.23004, 57.23004, and 77.2104 is clarified from the proposed provision. Like the proposal, the final rule requires that the operator make available a copy of the written safety program for inspection by authorized representatives of the Secretary, miners, and their representatives. In response to comments and consistent with the Mine Act that the operator, with the assistance of miners, is primarily responsible for safety and health, the final rule clarifies that miners and their representatives will receive, upon request, a copy of the written safety program at no cost.

Several commenters requested that MSHA provide further clarity on the acceptable formats for delivery of the written safety program. One commenter stated that the proposed rule needs to clarify that the written safety program is to be provided at no cost to miners and their representatives. Another commenter stated that this section should indicate that the written program can be maintained and provided electronically.

The final rule allows operators the flexibility to create the written safety program in any electronic or hard copy format, as long as the written safety program includes the information required by the final rule and can be made available for inspection by the Secretary, miners, and their representatives. Consistent with the Agency's longstanding policy, an operator must provide notice to miners by providing an electronic or hard copy of the written safety program to miners and their representatives, at no cost, upon request.

Under Executive Order (E.O.) 12866 (as amended by E.O. 14094), the Office of Management and Budget (OMB)'s Office of Information and Regulatory Affairs (OIRA) determines whether a regulatory action is significant and, therefore, subject to the requirements of the E.O. and review by OMB. 58 FR 51735, 51741 (1993). As amended by E.O. 14094, section 3(f) of E.O. 12866 defines a “significant regulatory action” as a regulatory action that is likely to result in a rule that may: (1) have an annual effect on the economy of $200 million or more; 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 impact of entitlements, grants, user fees or loan programs or the rights and obligations of recipients thereof; or (4) raise legal or policy issues for which centralized review would meaningfully further the President's priorities or the principles set forth in the E.O. OIRA has determined that this rule is significant under E.O. 12866, and accordingly it has been reviewed by OMB.

E.O. 13563 directs agencies to propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs; the regulation is tailored to impose the least burden on society, consistent with achieving the regulatory objectives; and in choosing among alternative regulatory approaches, the agency has selected those approaches that maximize net benefits. 76 FR 3821 (2011). E.O. 13563 recognizes that some benefits are difficult to quantify and provides that, where appropriate and permitted by law, agencies may consider and discuss qualitative values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts.

MSHA presents the costs and benefits associated with the final rule. MSHA estimated the costs associated with the final rule's requirements by adding the estimated costs of the following. First, the estimated costs include developing the written safety program document, including the actions the operators will take to follow better safety procedures and practices, by identifying and analyzing hazards, evaluating currently available and emerging technologies, developing and maintaining maintenance and repair schedules and procedures, and training miners and others to identify and address hazards, and including miners in developing and updating the program. Operators must also provide copies of the written safety program to miners and their representatives upon request. MSHA anticipates that the listing of actions operators will take will enhance existing compliance and improve safety regarding several of the existing requirements (such as training, maintenance and repair, workplace exams) that the program must describe. Second, the estimated costs include updating the written safety program at least annually and under certain circumstances, such as when new equipment is brought to the mine or when accidents or changes in mining conditions or practices occur that may adversely affect the safety and health of miners, and providing copies of the written safety program to miners and their representatives upon request. The first component is a one-time, initial compliance costs in the first year, whereas the second component represents the recurring compliance costs for subsequent years.

This section provides a summary of MSHA's cost and benefit estimates of the final rule. This final rule is estimated to have a 10-year total net benefit of $411 million at a 3 percent discount rate, based on estimated 10-year total benefits of $522 million and estimated 10-year total costs of $111 million. At the 3 percent discount rate, the estimated annualized net benefit is $48.2 million (annualized benefits of $61.3 million and annualized costs of $13.0 million). Supporting materials and data that provide additional details on the methodology used to estimate the costs, benefits, and other required analyses of this rule are included in the standalone Final Regulatory Impact Analysis (FRIA), which has been placed in the rule docket (RIN 1219-AB91, Docket ID No. MSHA-2018-0016) at https://www.regulations.gov and is posted on MSHA's website at https://www.msha.gov.

A total of 12,434 mines in the U.S. reported their working hours in 2021. Over 301,000 workers worked at those mines. Table III-1 shows which types of mines the miners and other workers worked.

This final rule applies to all operators of surface mines and underground mines with surface areas, including independent contractors working at those mines. As shown, there were 11,986 surface mines and 448 underground mines. Most underground mines have surface areas where miners work. Of all the mines, about 92 percent were metal and nonmetal mines and the rest were coal mines.

Under the final rule, operators are required to develop, implement, and update at least annually and when necessary, a written safety program for surface mobile equipment used at their mines. As defined in this rule, surface mobile equipment refers to wheeled, skid-mounted, track-mounted, or rail-mounted equipment capable of moving or being moved, and any powered equipment that transports people, equipment, or materials, excluding belt conveyors, at surface mines and surface work areas of underground mines.

The required written safety program for surface mobile equipment must include the actions that operators will take to identify and analyze hazards and reduce the resulting risks related to equipment movement and operation. It must also include actions to develop and maintain procedures and schedules for routine maintenance and non-routine repairs. Operators are also required to describe the actions they will take to identify currently available and newly emerging feasible technologies that can enhance safety and evaluate whether to adopt them. Finally, the rule requires operators to describe the actions they will take to train miners and other persons at the mine necessary to perform work to identify and address or avoid hazards related to surface mobile equipment.

Once the written safety program is developed and implemented, a responsible person is required to evaluate and update it for the mine at least annually, or when mining conditions or practices change that may adversely affect the health and safety of miners or other persons, when accidents or injuries occur, or when surface mobile equipment changes or modifications are made. While the final rule provides operators flexibility to devise a safety program that is appropriate for their specific mining conditions and operations, the final rule also requires operators to solicit input from miners and their representatives as they develop and update the written safety program.

MSHA estimated the costs associated with the final rule's requirements by adding the estimated costs of the following. First, the estimated costs include developing the written safety program document, including the actions the operators will take to identify and analyze hazards, evaluate current and emerging technologies, develop and maintain the maintenance and repair schedules and procedures, train miners and others to identify and address hazards associated with surface mobile equipment. Operators must also provide copies of the written safety program to miners and their representatives upon request. Second, the estimated costs include updating the written safety program at least annually and under certain circumstances, such as when new equipment is brought to the mine or when accidents or changes in mining conditions or practices occur that may adversely affect the safety and health of miners, and, for each update, providing copies of the written safety program to miners and their representatives upon request. The first component is considered to be the one-time, initial compliance costs in the first year, whereas the second component represents the recurring compliance costs for subsequent years. Estimated costs also include providing copies of the written safety program to miners and their representatives upon request.

MSHA calculated these compliance costs based on the estimated time spent by mine employees to develop and update the written safety program, multiplied by their wage rates. MSHA assumed that mine supervisors, safety professionals, and maintenance workers would participate in the creation and updates of the written safety program. MSHA assumed that operators will solicit input from miners and their representatives in developing and maintaining all aspects of the written safety program, and MSHA included the time for their collaboration in its cost estimates.

MSHA further assumed that the time needed to develop and update the written safety program would vary by the number of unique surface mobile equipment units at each mine, which would be related to a mine's production output ( e.g., tonnage), and employment size. 8 Based on these factors, MSHA grouped all MNM and coal mines into three categories each and estimated the compliance costs for this final rule by category. 9 MSHA also assumed a majority of independent contractors (75 percent or 4,739) would develop and update a written safety program for surface mobile equipment at mines. 10

The total compliance cost estimates are shown in Table III-2. The compliance costs for the 10-year period of analysis ( i.e., 10-year implementation period) are estimated to be about $126 million (in 2021 dollars) undiscounted, while the 10-year compliance costs discounted at 3 percent and 7 percent are about $111 million and $95 million, respectively. The annualized costs discounted at 3 and 7 percent are $13.0 million and $13.5 million, respectively.

This final rule is expected to generate numerous benefits, including reductions in individual injuries and fatalities, fostering of a positive safety culture at the mine, reductions in worker compensation and other insurance premiums, and decreases in down-time (non-production time) due to accidents. Among these benefits, MSHA focused on estimating the number of surface mobile equipment-related fatalities and injuries that could be prevented due to this final rule and the monetized benefits of those fatalities and injuries prevented. MSHA also performed a sensitivity analysis covering different scenarios that would lead to different percentages of fatalities and injuries prevented, and thus to different levels of benefits depending on the assumptions made.

Since the final rule includes all mines, MSHA modified the approach from the proposed rule and used the following analysis to estimate the monetized benefits of fatalities and injuries prevented. MSHA first established a baseline using the fatality and injury data and post-accident investigation reports from the 2011-2020 period. In the proposed rule, MSHA used data for accidents, fatalities, and injuries from the years 2003 to 2018 for mines that employed six or more miners. For the final rule, however, MSHA is using more recent and comprehensive data and detailed information concerning accidents, fatalities, and injuries that occurred between 2011 and 2020 for all mines. The Agency believes the more recent data better reflects current and future circumstances.

To estimate the monetized benefits of fatalities and injuries prevented, MSHA first examined historical fatality and injury data and post-accident investigation reports from the 2011-2020 period. MSHA found that over that 10-year period, there were 113 surface mobile equipment fatalities. MSHA further observed that in the case of 63 (about 56 percent) of the 113 fatalities involving surface mobile equipment, deficiencies in training, hazard identification, or maintenance or any combination of these three factors contributed to the fatality. MSHA also counted 13,753 non-fatal injuries involving surface mobile equipment and 454,076 workdays lost due to those injuries during the 10-year period.

Based on this historical analysis, MSHA projected the numbers of surface mobile equipment fatalities, non-fatal injuries, and lost workdays that would be expected due to deficiencies in training, hazard identification, or maintenance, in the absence of the final rule. MSHA then compared those projected numbers (“baseline”) with the projections of the same types of fatalities, non-fatal injuries, and workdays lost, in the presence of the final rule. The difference between the two was used as the basis for calculating benefits of the final rule. MSHA believes that a safety program that identifies actions operators will take to accomplish the required tasks will reduce fatalities, non-fatal injuries, and lost workdays that would be expected due to deficiencies in training, hazard identification, or maintenance because it will increase compliance with MSHA's existing hazard identification, hazard correction, maintenance, and training requirements.

MSHA projected that in the absence of the final rule, over the next 10 years, there would be 60 fatalities, 7,298 injuries, and 240,954 workdays lost annually due to deficiencies in training, hazard identification, or maintenance related to surface mobile equipment. These projections assume a mining workforce of approximately 253,401 (each working 2,000 hours in a year) each year. MSHA estimated that the final rule would reduce the projected fatalities, injuries, and workdays lost resulting from deficiencies in training, hazard identification, or maintenance by about 75 percent for each year the rule is in effect, beginning in the second year. 11 MSHA then performed a sensitivity analysis with two additional scenarios—a 50 percent reduction and a 25 percent reduction. Table III-3 and Table III-4 present summaries of these results.

For the last several years, the Coast Guard has sought to better align the names of its assets to correspond to the area of responsibility which they serve. Review of the missions and engagements within the eastern Great Lakes region highlighted that “Sector Buffalo” alone did not adequately capture the breadth and range of Coast Guard operations and relationships throughout the Eastern Great Lakes. The Coast Guard has approved the name change to U.S. Coast Guard Sector Eastern Great Lakes in order to acknowledge the long-standing commitment to all communities throughout the Eastern Great Lakes and to reaffirm the multi-mission support that the Coast Guard provides to ensure safety at sea and enhanced maritime governance.

The geographic boundaries of Sector Eastern Great Lakes are not changing, and its office is not moving from Buffalo, New York.

We did not publish a notice of proposed rulemaking (NPRM) before this final rule. The Coast Guard finds that this rule is exempt from notice and comment rulemaking requirements under 5 U.S.C. 553(b)(A) because the changes it makes are conforming amendments involving agency organization. The Coast Guard also finds good cause exists under 5 U.S.C. 553(b)(B) for not publishing an NPRM because the changes will have no substantive effect on the public, and notice and comment are therefore unnecessary.

The Coast Guard is issuing this rule under authority in 14 U.S.C. 504(a)(2), as delegated at 33 CFR 1.05-1(h), to issue regulations necessary to implement technical, organizational, and conforming amendments and corrections to rules, regulations, and notices.

Operating Facility Change Order (OFCO) No. 036/23, issued November 6, 2023, changed the official unit name of U.S. Coast Guard Sector Buffalo to U.S. Coast Guard Sector Eastern Great Lakes. See OFCO No. 036/23, which is available in the docket for this rule. The previous name of Sector Buffalo is described and reflected in regulations, which also contain contact details and other references to Sector Buffalo. These conforming amendments update those regulations so that they contain current information.

Under 14 U.S.C. 504(a)(2), the Commandant of the Coast Guard has the authority to establish and prescribe the purpose of Coast Guard Shore establishments. This authority has been delegated to the Chief of the Coast Guard's Office of Regulations and Administrative Law under 33 CFR 1.05-1(h).

OFCO No. 036/23, issued November 6, 2023, changed the official unit name of U.S. Coast Guard Sector Buffalo to U.S. Coast Guard Sector Eastern Great Lakes. The November 2023 OFCO did not change the area of responsibility (AOR). The AOR of U.S. Coast Guard Sector Eastern Great Lakes is identical to that of what was U.S. Coast Guard Sector Buffalo. All authorities and responsibilities previously assigned to Commander, U.S. Coast Guard Sector Buffalo have been assigned to Commander, U.S. Coast Guard Sector Eastern Great Lakes. Additionally, all authorities that were vested in the Commander, U.S. Coast Guard Sector Buffalo as it pertains to the COTP, the OCMI, the Federal On Scene Coordinator, the Federal Maritime Security Coordinator, and the Search and Rescue Coordinator, have been assigned to Commander, U.S. Coast Guard Sector Eastern Great Lakes. This rule does not change any sector, OCMI, or COTP zone boundary lines, nor does it have any substantive impact on existing regulated navigation area, safety zone, or security zone regulation, or any naval vessel protection zones.

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.

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), and pursuant to OMB guidance is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on the finding that the name change will have no substantive effect on the public.

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.

For the reasons stated in section V.A. above, this rule will not have a significant economic impact on any member of the public, including “small entities.”

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 consists only of an organizational amendment. It is categorically excluded from further review under paragraph L3 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1, Implementation of the National Environmental Policy Act.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR parts 3, 100, and 165 as follows:

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because structural damaged is causing the potential collapse of the Culebra Bridge. Due to this situation the Culebra Bridge is temporary closed and immediate action is needed to respond to the potential safety hazards associated with the bridge structural condition. It is impracticable to publish an NPRM because we must establish this safety zone by December 14, 2023. Therefore, we lack sufficient time to provide a reasonable comment period and then to consider those comments before issuing the rule.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be impracticable because immediate action is needed to respond to the potential safety hazards associated with potential collapsing of the Culebra Bridge.

We are soliciting comments on this rulemaking. If we determine that changes to this rulemaking action are necessary, the Coast Guard will consider comments received in a subsequent temporary final rule.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port Sector San Juan (COTP) has determined that potential hazards associated with potential collapsing of the Culebra Bridge starting December 14, 2023, will be a safety concern for anyone within a 50-yard radius of bridge. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the bridge is being closed.

This rule establishes a safety zone from December 14, 2023, while the bridge is closed due to structural damage. The safety zone will cover all navigable waters of the Laguna de Lobina within a 50-yard radius of the Culebra Bridge. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters while the bridge is closed. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

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

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under section 3(f) of Executive Order 12866, as amended by Executive Order 14094 (Modernizing Regulatory Review). Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on: (1) The safety of personnel, vessels, and the marine environment from potential hazards created by potential collapsing the bridge; (2) although persons and vessels may not enter, transit through, anchor in, or remain within the safety zone without authorization from the COTP or a designated representative they may operate in the surrounding area during the enforcement period.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone that will prohibit entry within 50-yard radius of the Culebra Bridge. It is categorically excluded from further review under paragraph L60(d) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

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.

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

Submitting comments. We encourage you to submit comments through the Federal Decision-Making Portal at https://www.regulations.gov. To do so, go to https://www.regulations.gov, type USCG-2023-0965 in the search box and click “Search.” Next, look for this document in the Search Results column, and click on it. Then click on the Comment option. If you cannot submit your material by using https://www.regulations.gov, call or email the person in the FOR FURTHER INFORMATION CONTACT section of this rule for alternate instructions.

Viewing material in docket. To view documents mentioned in this rule as being available in the docket, find the docket as described in the previous paragraph, and then select “Supporting & Related Material” in the Document Type column. Public comments will also be placed in our online docket and can be viewed by following instructions on the https://www.regulations.gov. Frequently Asked Questions web page. Also, if you click on the Dockets tab and then the rule, you should see a “Subscribe” option for email alerts. The option will notify you when comments are posted, or a final rule is published.

We review all comments received, but we will only post comments that address the topic of the rule. We may choose not to post off-topic, inappropriate, or duplicate comments that we receive.

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

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

In FR Doc. 2023-26022, appearing at 88 FR 83036 in the Federal Register of Tuesday, November 28, 2023, the following corrections are made:

Throughout this document, the terms “we,” “us,” and “our” refer to the EPA.

On November 26, 2021, the EPA took final action to approve in part and disapprove in part portions of SIP revisions submitted by the California Air Resources Board (CARB) to address CAA requirements for the 1997 annual PM 2.5 NAAQS in the San Joaquin Valley PM 2.5 nonattainment area. 1 Specifically, the EPA approved the 2013 base year emissions inventories but disapproved the attainment demonstration and related elements, including the comprehensive precursor demonstration, five percent annual emissions reductions demonstration, best available control measures demonstration, reasonable further progress demonstration, quantitative milestones, contingency measures, and motor vehicle emissions budgets. In our November 26, 2021 action, we determined that while the SIP revisions met the requirements for base year inventories, the SIP revisions did not meet the applicable requirements for the other listed plan elements under title I, part D, of the Act and the EPA's implementing regulations for Serious PM 2.5 nonattainment areas that are subject to CAA section 189(d). Pursuant to section 179 of the CAA and our regulations at 40 CFR 52.31, this partial disapproval action started an 18-month clock for the application of the offset sanction and a 24-month clock for the application of the highway sanction, beginning on the effective date of our November 26, 2021 action ( i.e., December 27, 2021), unless the State submits, and the EPA approves, a SIP revision or revisions that address the deficiencies that formed the basis for the partial disapproval prior to the expiration of the sanctions clocks. Application of the offset sanction has been in effect since June 27, 2023, and the clock for the highway sanction will expire on December 27, 2023.

On November 8, 2021, CARB submitted the “Attainment Plan Revision for the 1997 Annual PM 2.5 Standard” (herein referred to as the “15 µg/m 3 SIP Revision”) to amend the previously disapproved SIP revisions and to address all CAA requirements for the 1997 annual PM 2.5 NAAQS except for contingency measures. 2 On July 14, 2023, the EPA proposed approval of the relevant SIP revisions, including the 15 µg/m 3 SIP Revision, that address all the applicable requirements for the 1997 annual PM 2.5 NAAQS in the San Joaquin Valley that had been the subject of our November 26, 2021 final partial disapproval action, except for the contingency measure requirements. 3 On December 5, 2023, the EPA Region IX Regional Administrator signed a final rule taking action to approve the SIP revisions that the EPA had proposed to approve on July 14, 2023.

Also on November 26, 2021, the EPA published a separate final rule to approve in part and disapprove in part portions of SIP revisions submitted by CARB to address CAA requirements for the 2006 24-hour PM 2.5 NAAQS and the 2012 annual PM 2.5 NAAQS in the San Joaquin Valley. 4 Specifically, we approved all but the contingency measure element of the SIP revisions as they pertained to the Moderate area plan requirements for the 2012 PM 2.5 NAAQS, and we disapproved the contingency measure elements for the 2006 24-hour PM 2.5 NAAQS and the 2012 annual PM 2.5 NAAQS. Like our final action on the Serious area plan for the 1997 annual PM 2.5 NAAQS, pursuant to section 179 of the CAA and our regulations at 40 CFR 52.31, our partial disapproval action started an 18-month clock for the application of the offset sanction and a 24-month clock for the application of the highway sanction, beginning on the effective date of our November 26, 2021 action ( i.e., December 27, 2021), unless the State submits, and the EPA approves, a SIP revision or revisions that address the deficiencies that formed the basis for the disapproval prior to the expiration of the sanctions clocks. Application of the offset sanction has been in effect since June 27, 2023, and the clock for the highway sanction will expire on December 27, 2023.

On June 8, 2023, CARB submitted SIP revisions (herein referred to as the “SJV PM 2.5 Contingency Measure SIP” and the “Residential Wood Burning Contingency Measure”) addressing the contingency measure requirements for the 1997 annual PM 2.5 NAAQS, the 2006 24-hour PM 2.5 NAAQS, and the 2012 annual PM 2.5 NAAQS for the San Joaquin Valley. The Residential Wood Burning Contingency Measure would, following a triggering event, expand the residential wood burning curtailment restrictions if certain determinations are made by the EPA. On October 16, 2023, CARB supplemented the SJV PM 2.5 Contingency Measure SIP with the submission of a second PM 2.5 contingency measure (referred to herein as the “Rural Open Areas Contingency Measure”) that would, following a triggering event, expand applicability of certain fugitive dust controls if triggered by a contingency event. In addition, on November 13, 2023, CARB submitted a state-wide contingency measure SIP revision, including provisions for PM 2.5 contingency measures in the San Joaquin Valley (herein referred to as the “Smog Check Contingency Measure”) that would, following a triggering event, reduce the model-year vehicle exemption in the State's vehicle inspection and maintenance program (referred to as the “Smog Check” program) by one year.

In the Proposed Rules section of this issue of the Federal Register , we have proposed approval of the SJV PM 2.5 Contingency Measure SIP, the Residential Wood Burning Contingency Measure, and the Rural Open Areas Contingency Measure, and, in a separate rulemaking, we have proposed approval of the Smog Check Contingency Measure. Based on our July 14, 2023 proposed approval action with respect to the Serious area SIP elements for the San Joaquin Valley for the 1997 annual PM 2.5 NAAQS (other than the contingency measure element), and on the proposed approval actions in this issue of the Federal Register with respect to the contingency measure SIP and related contingency measures, we are taking this final rulemaking action, effective upon publication, to stay application of the offset sanction and defer application of the highway sanction that were triggered by the EPA's November 26, 2021 disapprovals of the Serious area plan for the 1997 annual PM 2.5 NAAQS, including the contingency measure element, and the contingency measure elements for the 2006 24-hour PM 2.5 NAAQS and the 2012 annual PM 2.5 NAAQS. We are doing so because we find that the submissions of the 15 µg/m 3 SIP Revision, the SJV PM 2.5 Contingency Measure SIP, the Residential Wood Burning Contingency Measure, the Rural Open Areas Contingency Measure, and the Smog Check Contingency Measure correct the deficiencies that triggered such sanctions.

The EPA is providing the public with an opportunity to comment on this stay of the offset sanction and deferral of the highway sanction. If comments are submitted that change our assessment, as described in this final determination and in our proposed approvals of the SJV PM 2.5 Contingency Measure SIP, the Residential Wood Burning Contingency Measure, the Rural Open Areas Contingency Measure, and the Smog Check Contingency Measure, with respect to the deficiencies identified as the basis for our disapprovals of the contingency measure elements, we will take final action proposing to lift this stay of the offset sanction and deferral of the highway sanction under 40 CFR 52.31. If no comments are submitted that change our assessment, then all sanctions and any sanction clocks triggered by our November 26, 2021 final actions will be permanently terminated on the effective date of our final approvals of the SJV PM 2.5 Contingency Measure SIP, the Residential Wood Burning Contingency Measure, the Rural Open Areas Contingency Measure, and the Smog Check Contingency Measure.

All sanctions and any sanctions clocks associated with the Serious area SIP elements for the 1997 annual PM 2.5 NAAQS for the San Joaquin Valley (except the contingency measures element) will be permanently terminated on the effective date of the final approval of the 15 µg/m 3 SIP Revision, which was signed by the EPA Region IX Regional Administrator on December 5, 2023.

We are making an interim final determination to stay the application of the offset sanction and to defer the application of the highway sanction associated with our November 26, 2021 disapprovals of certain Serious area plan elements for the 1997 annual PM 2.5 NAAQS for the San Joaquin Valley (including the contingency measure element) and of the contingency measure elements for the 2006 24-hour PM 2.5 NAAQS and the 2012 annual PM 2.5 NAAQS for the San Joaquin Valley. This determination is based on our concurrent proposals to approve the SJV PM 2.5 Contingency Measure SIP, the Residential Wood Burning Contingency Measure, the Rural Open Areas Contingency Measure, and the Smog Check Contingency Measure, and our July 14, 2023 proposed approval of the 15 µg/m 3 SIP Revision, which resolve the deficiencies that triggered sanctions under section 179 of the CAA.

Because the EPA has preliminarily determined that the submissions of the 15 µg/m 3 SIP Revision, the SJV PM 2.5 Contingency Measure SIP, the Residential Wood Burning Contingency Measure, the Rural Open Areas Contingency Measure, and the Smog Check Contingency Measure, address the deficiencies identified in the November 26, 2021 partial disapproval actions and are fully approvable, relief from sanctions should be provided as quickly as possible. Therefore, the EPA is invoking the good cause exception under the Administrative Procedure Act (APA) in not providing an opportunity for comment before this action takes effect (5 U.S.C. 553(b)(3)). However, by this action, the EPA is providing the public with an opportunity to comment on the EPA's determination after the effective date, and the EPA will consider any comments received in determining whether to reverse such action.

The EPA believes that notice-and-comment rulemaking before the effective date of this action is impracticable and contrary to the public interest. The EPA has reviewed the submissions of the 15 µg/m 3 SIP Revision, the SJV PM 2.5 Contingency Measure SIP, Residential Wood Burning Contingency Measure, the Rural Open Areas Contingency Measure, and the Smog Check Contingency Measure and, through its proposed actions, is indicating that it is more likely than not that they correct the deficiencies that were the basis for the actions that started the sanctions clocks. Therefore, it is not in the public interest to apply sanctions. The EPA believes that it is necessary to use the interim final rulemaking process to stay the application of the offset sanction and defer the application of the highway sanction while we complete our rulemaking process on the approvability of the CARB's submissions of SIP revisions intended to address the Serious area plan elements for the San Joaquin Valley for the 1997 annual PM 2.5 NAAQS (including contingency measures) and the contingency measure requirements for the 2006 24-hour PM 2.5 NAAQS and the 2012 annual PM 2.5 NAAQS. Moreover, with respect to the effective date of this action, the EPA is invoking the good cause exception to the 30-day notice requirement of the APA because the purpose of this document is to relieve a restriction (5 U.S.C. 553(d)(1)).

This action stays or defers application of sanctions and imposes no additional requirements.

This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.

This action does not impose an information collection burden under the PRA. This action stays or defers application of sanctions and imposes no new requirements.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This action stays or defers application of sanctions and imposes no new requirements.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector.

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the National Government and the states, or on the distribution of power and responsibilities among the various levels of government.

This action does not have tribal implications as specified in Executive Order 13175. This action stays or defers application of sanctions and imposes no new requirements. In addition, this action does not apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. Thus, Executive Order 13175 does not apply to this action.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.

This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

This rulemaking does not involve technical standards.

Executive Order 12898 (59 FR 7629, February 16, 1994) directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations (people of color) and low-income populations. The EPA believes that this type of action does not concern human health or environmental conditions and therefore cannot be evaluated with respect to potentially disproportionate and adverse effects on people of color, low-income populations, and/or Indigenous peoples. This action stays or defers application of sanctions in accordance with CAA regulatory provisions and imposes no additional requirements. Although this action does not concern human health or environmental conditions, the EPA identifies and addresses environmental justice concerns by promoting meaningful involvement in this action through providing the public with an opportunity to comment on this stay of the offset sanction and the deferral of the highway sanction as well as the opportunity to comment on our proposed approvals of the submissions of the SJV PM 2.5 Contingency Measure SIP, Residential Wood Burning Contingency Measure, the Rural Open Areas Contingency Measure, and the Smog Check Contingency Measure in the Proposed Rules section of this Federal Register .

This action is subject to the Congressional Review Act (CRA), and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. The CRA allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and comment rulemaking procedures are impracticable, unnecessary, or contrary to the public interest (5 U.S.C. 808(2)). The EPA has made a good cause finding for this action as discussed in section II of this preamble, including the basis for that finding.

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 20, 2024. Filing a petition for reconsideration by the EPA Administrator of this action does not affect the finality of this action for the purpose of judicial review nor does it extend the time within which petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see CAA section 307(b)(2)).

We received an application from the Coast Guard requesting 5-year regulations and authorization to take multiple species of marine mammals. This rule establishes a framework under the authority of the MMPA (16 U.S.C. 1361 et seq. ) to allow for the authorization of take of marine mammals incidental to the Coast Guard's construction activities related to maintenance and repair at facilities in Alaska.

Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs the Secretary of Commerce to allow, upon request, the incidental, but not intentional taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region for up to 5 years if, after notice and public comment, the agency makes certain findings and issues regulations that set forth permissible methods of taking pursuant to that activity and other means of effecting the “least practicable adverse impact” on the affected species or stocks and their habitat (see the discussion below in the Mitigation section), as well as monitoring and reporting requirements. Section 101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR part 216, subpart I provide the legal basis for issuing this final rule containing 5-year regulations, and for any subsequent Letters of Authorization (LOAs). As directed by this legal authority, this final rule contains mitigation, monitoring, and reporting requirements.

Following is a summary of the major provisions of this rule regarding Coast Guard construction activities. These measures include:

• Required monitoring of the construction areas to detect the presence of marine mammals before beginning construction activities;

• Shutdown of construction activities under certain circumstances to avoid injury of marine mammals; and

• Soft start for impact pile driving to allow marine mammals the opportunity to leave the area prior to beginning impact pile driving at full power.

The MMPA prohibits the “take” of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq. ) direct the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed incidental take authorization may be provided to the public for review.

Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other “means of effecting the least practicable adverse impact” on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stocks for taking for certain subsistence uses (referred to as “mitigation”); and requirements pertaining to the mitigation, monitoring, and reporting of the takings are set forth. The definitions of all applicable MMPA statutory terms cited above are included in the relevant sections below.

On March 15, 2021, NMFS received an application from the Coast Guard requesting authorization for take of marine mammals incidental to construction activities related to maintenance and repair at eight Coast Guard facilities in Alaska. On November 24, 2021 (86 FR 67023), we published a notice of receipt of the Coast Guard's application in the Federal Register , requesting comments and information related to the request for 30 days. We received no public comments. Following additional review, we determined the application was adequate and complete on January 19, 2022. On August 12, 2022, the Coast Guard submitted a modification to their application (to include vibratory driving of composite piles as part of the specified activity). This revised application was deemed adequate and complete on August 31, 2022. On April 28, 2023, we published the proposed rule in the Federal Register (88 FR 26432), incorporating the changes submitted by the Coast Guard in August 2022, and requested comments and information from the public. We received no public comments. The regulations in this final rule are valid for 5 years after the initial effective date, and allow for authorization of take of 12 species of marine mammals by Level A and Level B harassment incidental to construction activities related to facility maintenance and repair at 8 sites in Alaska. Neither the Coast Guard nor NMFS expect serious injury or mortality to result from this activity.

The Coast Guard plans to conduct construction necessary for maintenance and repair of existing in-water structures at the following eight Coast Guard station facilities in Alaska: Kodiak, Sitka, Ketchikan, Valdez, Cordova, Juneau, Petersburg, and Seward. These repairs will include installation and removal of steel, concrete, and timber piles, involving use of impact and vibratory hammers and Down-The-Hole drilling (DTH) equipment, and removal of piles by cutting, clipping, or vibratory extraction. Maintenance activities may also include underwater power washing. Up to 245 piles will be removed and replaced on a 1-to-1 basis ( i.e., total pile numbers at these facilities are expected to remain the same) over the 5-year period of effectiveness for the regulations. Hereafter (unless otherwise specified or detailed) we use the term “pile driving” to refer to both pile installation and pile removal. The use of vibratory, DTH, and impact pile driving equipment is expected to produce underwater sound at levels that have the potential to result in harassment of marine mammals.

A more detailed description of the planned construction project is provided in the proposed rule (88 FR 26432, April 28, 2023). Since that time, no changes have been made to the planned activities. Therefore, a detailed description is not provided here. Please refer to the proposed rule (88 FR 26432, April 28, 2023) for the detailed description of the specific planned activities at each facility.

The proposed rule to authorize take of marine mammals incidental to construction activities related to maintenance and repair at eight Coast Guard facilities in Alaska (88 FR 26432; April 28, 2023) provided detailed descriptions of Coast Guard's activities, the marine mammal species that may be affected by the activities, and the anticipated effects on marine mammals, and requested public input on the Coast Guard's request for authorization, our analyses, the proposed authorization, and any other aspect of the proposed authorization. The proposed rule requested that interested persons submit relevant information, suggestions, and comments in a 30-day public comment period. NMFS received no substantive public comments on the proposed rule.

Since the proposed rule was published (88 FR 26432, April 28, 2023), NMFS published the final 2022 Alaska and Pacific Stock Assessment Reports (SAR), available at https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region, which describe revised stock structures under the MMPA for humpback whales and southeast Alaska harbor porpoise (Carretta et al., 2023; Young et al., 2023). In the proposed rule, we explained that, although we typically consider updated peer-reviewed data provided in draft SARs to be the best available science, and use the information accordingly, proposed revisions to stock structures are excepted due to potential changes based on public comments, and it is more appropriate to use the status quo stock structures until the new stock structures are finalized. Therefore, upon finalization of these revised stock structures in the final SARs, we have made appropriate updates in this final rule. This includes updates in the description of the potentially affected stocks (see the Description of Marine Mammals in the Area of the Specified Activity section, including table 1), the attribution of take numbers to stock (see the Estimated Take section), and the analyses to ensure the necessary determinations are made for the new stocks (see the Negligible Impact Analysis and Determination and Small Numbers sections).

In table 1, we updated the stock information to reflect the finalized humpback whale and harbor porpoise stock structures. For humpback whale, the Central and Western North Pacific Stocks have been replaced by the Hawai'i and Mexico-North Pacific stocks; for harbor porpoise, the Southeast Alaska stock has been split into the Northern Southeast Alaska Inland Waters, Southern Southeast Alaska Inland Waters, and Yakutat/Southeast Alaska Offshore Waters stocks. New stocks have been updated to include associated ESA/MMPA status, stock abundance data, PBR, and Annual Mortality and Serious Injury data. Updates to stock names have also been carried through in tables 9 through 16, as relevant, and stock ranges have been noted in footnotes on table 13.

NMFS has also made a few minor corrections in this final rule. In Table 7 of the Estimated Take section of the proposed rule, the correct reference for the sound source level for impact installation of 24-inch concrete piles is “Washington State Department of Transportation (WSDOT) (2007)”, not “WSDOT (2020)”; the correct reference has been included in Table 4 in this final rule. In the regulatory text of this final rule, text relating to Protected Species Observer (PSO) qualifications (§ 217.195 (b)) has been subdivided into § 217.195(b)(1) to § 217.195(b)(5) for clarity. Additionally, the following text was added to § 217.195(e)(1)(ii)(B) “When possible, the number of strikes for each pile/hole (impact driving, DTH); and, for DTH, the duration of operation for both impulsive and non-impulsive components as well as the strike rate must be included” for consistency with current guidelines on hydroacoustic data collection.

This final rule also corrects addition errors in two tables in the proposed rule: table 15 (Level B Harassment Take in Each of the Five Years and in Total) and table 19 (Proposed Level A and Level B Harassment Take and Percent of Stock for the Highest Annual Estimated Takes of the Project). In table 15, the total estimated take for minke whale should have been 26, rather than 25. In table 19 (which is Table 16 in this final rule), the total number of takes from the “harbor porpoise—Gulf of Alaska” stock should have summed to 200 rather than 245.

This final rule also includes corrections to several typographical errors in the proposed rule at table 16 (Proposed Level B Harassment Take for Each Facility), which is table 13 in this final rule. Footnote indicators from the application were accidentally included in the take numbers for killer whales and Pacific white-sided dolphins at Cordova and Seward, and for Northern fur seals at Seward. Also, in table 16 of the proposed rule, the values for killer whale were incorrectly ordered. While the order of the column headers was “Kodiak; Sitka; Ketchikan; Seward; Valdez; Cordova; Juneau; Petersburg”, the order of the take estimates presented for killer whales was “Kodiak; Sitka; Ketchikan; Valdez; Cordova; Juneau; Petersburg; Seward”, resulting in errors for Seward, Valdez, Cordova, Juneau, and Petersburg. These errors impacted the site-specific take calculations and total estimates of take by Level B harassment for these species. The correct take estimates have been carried through and are shown in tables 12, 13, and 16 of this final rule. All corrections to proposed rule Table 16 resulted in a lower amount of take by Level B harassment than that shown in the proposed rule. Total take by Level B Harassment over the course of the 5-year authorization changed as follows:

• Killer whales: proposed: 797; final: 543;

• Pacific white-sided dolphin: proposed: 1,379; final: 1,105; and

• Northern fur seal: proposed: 181; final: 71.

We have reviewed the Coast Guard's LOA application, including the species descriptions that summarize available information regarding status and trends, distribution and habitat preferences, behavior and life history, and auditory capabilities of the potentially affected species, for accuracy and completeness and refer the reader to Sections 3 and 4 of the application, instead of reprinting all of the information here. Additional information regarding population trends and threats may be found in NMFS' SARs ( www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments ) and more general information about these species ( e.g., physical and behavioral descriptions) may be found on NMFS' website ( www.fisheries.noaa.gov/find-species ).

Table 1 lists all species or stocks for which take is expected and authorized for this action and summarizes information related to the population or stock, including regulatory status under the MMPA and the Endangered Species Act (ESA) and potential biological removal (PBR), where known. PBR, defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population, is considered in concert with known sources of ongoing anthropogenic mortality (as described in NMFS' SARs). While no mortality is anticipated or authorized here, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species and other threats.

Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS' stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in the specified geographical regions are assessed in either NMFS' U.S. Alaska SARs or U.S. Pacific SARs. All values presented in table 1 are the most recent available at the time of writing, including in the final 2022 SARs, and are available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-species-stock.

A detailed description of the species likely to be affected by the Coast Guard's programmatic maintenance project, including brief introductions to the species and relevant stocks, as well as available information regarding population trends and threats, and information regarding local occurrence, were provided in the proposed rule (88 FR 26432, April 28, 2023). With the exception of humpback whale and harbor porpoise, NMFS is not aware of any changes in the status of these species and stocks; therefore, detailed descriptions are not provided here. Please refer to the proposed rule (88 FR 26432, April 28, 2023) for these descriptions. Please also refer to NMFS' website ( https://www.fisheries.noaa.gov/find-species ) for generalized species accounts.

The 2022 Alaska and Pacific SARs described a revised stock structure for humpback whales which modifies the previous stocks designated under the MMPA to align more closely with the ESA-designated DPSs (Caretta et al., 2023; Young et al., 2023). Specifically, the three previous North Pacific humpback whale stocks (Central and Western North Pacific stocks and a CA/OR/WA stock) were replaced by five stocks, largely corresponding with the ESA-designated DPSs. These include Western North Pacific and Hawai'i stocks and a Central America/Southern Mexico-CA/OR/WA stock (which corresponds with the Central America DPS). The remaining two stocks, corresponding with the Mexico DPS, are the Mainland Mexico-CA/OR/WA and Mexico-North Pacific stocks (Caretta et al., 2023; Young et al., 2023). The former stock is expected to occur along the west coast from California to southern British Columbia, while the latter stock may occur across the Pacific, from northern British Columbia through the Gulf of Alaska and Aleutian Islands/Bering Sea region to Russia.

In the proposed rule, NMFS stated that the Central North Pacific stock of humpback whale was likely to be impacted by USCG's activities. Given the final revised stock structure, NMFS has reanalyzed the potential for take of each stock of humpback whale and determined that the Hawai'i stock and the Mexico-North Pacific stock are likely to be impacted by USCG's activities.

The 2022 Alaska SARs described a revised stock structure for southeast Alaska harbor porpoise, which were split from one stock into three: the Northern Southeast Alaska Inland Waters, Southern Southeast Alaska Inland Waters, and Yakutat/Southeast Alaska Offshore Waters harbor porpoise stocks (Young et al., 2023). This update better aligns harbor porpoise stock structure with genetics, trends in abundance, and information regarding discontinuous distribution trends (Young et al., 2023). Harbor porpoises found near Sitka are assumed to be members of the Yakutat/Southeast Alaska Offshore Waters stock. Harbor porpoises found near Juneau are assumed to be members of the Northern Southeast Alaska Inland Waters stock, while those found near Ketchikan are assumed to be members of the Southern Southeast Alaska Inland Waters stock, based on the geographical range of the stocks. The dividing line between the Northern and Southern Southeast Alaska Inland Waters Stocks is very close to Petersburg; therefore harbor porpoises at this location are assumed to be from both stocks in equal proportions. Please refer to the proposed rule (88 FR 26432, April 28, 2023) for species descriptions. Please also refer to the NMFS' website ( https://www.fisheries.noaa.gov/find-species ) for generalized species accounts, and to the SARs ( https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments ) for more information about the changes to humpback whale and harbor porpoise stock structures.

Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To appropriately assess the potential effects of exposure to sound, it is necessary to understand the frequency ranges marine mammals are able to hear. Current data indicate that not all marine mammal species have equal hearing capabilities ( e.g., Richardson et al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et al. (2007) recommended that marine mammals be divided into functional hearing groups based on directly measured or estimated hearing ranges on the basis of available behavioral response data, audiograms derived using auditory evoked potential techniques, anatomical modeling, and other data. Note that no direct measurements of hearing ability have been successfully completed for mysticetes ( i.e., low-frequency cetaceans). Subsequently, NMFS (2016) described generalized hearing ranges for these marine mammal hearing groups. Generalized hearing ranges were chosen based on the approximately 65-decibel (dB) threshold from the normalized composite audiograms, with an exception for lower limits for low-frequency cetaceans where the result was deemed to be biologically implausible and the lower bound from Southall et al. (2007) retained. Marine mammal hearing groups and their associated hearing ranges are provided in table 2.

The pinniped functional hearing group was modified from Southall et al. (2007) on the basis of data indicating that phocid species have consistently demonstrated an extended frequency range of hearing compared to otariids, especially in the higher frequency range (Hemilä et al., 2006; Kastelein et al., 2009; Reichmuth and Holt, 2013). This division between phocid and otariid pinnipeds is now reflected in the updated hearing groups proposed in Southall et al. (2019).

For more detail concerning these groups and associated generalized hearing ranges, please see the Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (NMFS, 2018; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance ) for a review of available information.

This section includes a summary and discussion of the ways that components of the specified activity may impact marine mammals and their habitat. The Estimated Take section later in this document includes a quantitative analysis of the number of individuals that are expected to be taken by this activity. The Negligible Impact Analysis and Determination section considers the content of this section, the Estimated Take section, and the Mitigation section, to draw conclusions regarding the likely impacts of these activities on the reproductive success or survivorship of individuals and how those impacts on individuals are likely to impact marine mammal species or stocks.

The effects of underwater noise from Coast Guard's construction activities have the potential to result in behavioral harassment of marine mammals in the vicinity of the survey area. The proposed rule (88 FR 26432, April 28, 2023) included a discussion of the effects of anthropogenic noise on marine mammals and the potential effects of underwater noise from pile installation and extraction on marine mammals and their habitat. That information and analysis is not repeated here; please refer to the proposed rule (88 FR 26432, April 28, 2023).

This section provides an estimate of the number of incidental takes for authorization, which will inform both NMFS' consideration of “small numbers” and the negligible impact determination.

Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as: any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).

Authorized takes would be by Level A or Level B harassment only, in the form of disruption of behavioral patterns for individual marine mammals resulting from exposure to the acoustic sources. Based on the nature of the activity, no serious injury or mortality is anticipated or authorized for this activity. Below we describe how the take is estimated.

Generally speaking, we estimate take by considering: (1) acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) and the number of days of activities. We note that while these basic factors can contribute to a basic calculation to provide an initial prediction of takes, additional information that can qualitatively inform take estimates is also sometimes available ( e.g., previous monitoring results or average group size). Below, we describe the factors considered here in more detail and present the take estimate.

NMFS recommends the use of acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur permanent threshold shift (PTS) of some degree (equated to Level A harassment).

Level B Harassment —Though significantly driven by received level, the onset of behavioral disturbance from anthropogenic noise exposure is also informed to varying degrees by other factors related to the source ( e.g., frequency, predictability, duty cycle), the environment ( e.g., bathymetry), and the receiving animals (hearing, motivation, experience, demography, behavioral context) and can be difficult to predict (Southall et al., 2007, Ellison et al., 2012). Based on what the available science indicates and the practical need to use a threshold based on a factor that is both predictable and measurable for most activities, NMFS uses a generalized acoustic threshold based on received level to estimate the onset of behavioral harassment. NMFS predicts that marine mammals are likely to be behaviorally harassed in a manner we consider Level B harassment when exposed to underwater anthropogenic noise above received levels of 120 dB referenced to 1 micropascal (re 1 μPa) root mean square (rms) for continuous ( e.g., vibratory pile-driving, DTH) and above 160 dB re 1 μPa (rms) for non-explosive impulsive, intermittent ( e.g., impact driving, DTH) sources.

The Coast Guard's planned activity includes the use of continuous (vibratory, DTH) and impulsive (impact pile driving and DTH) sources, and therefore the 120 and 160 dB re 1 μPa (rms) thresholds, respectively, are applicable.

Level A harassment for non-explosive sources —NMFS' Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0) (Technical Guidance, 2018) identifies dual criteria to assess auditory injury (Level A harassment) to five different marine mammal groups (based on hearing sensitivity) as a result of exposure to noise from two different types of sources (impulsive or non-impulsive). The Coast Guard's planned activity includes the use of impulsive (impact pile driving and DTH) and non-impulsive (vibratory, DTH) sources.

These thresholds are provided in the table below. The references, analysis, and methodology used in the development of the thresholds are described in NMFS 2018 Technical Guidance, which may be accessed at https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

Here, we describe operational and environmental parameters of the activity that will feed into estimating the area ensonified above the acoustic thresholds, which include source levels and transmission loss coefficient.

The sound field in the project area is the existing background noise plus additional construction noise from the project. Marine mammals are expected to be affected via sound generated by the primary components of the project ( i.e., impact pile driving, vibratory pile driving, vibratory pile removal, and DTH).

The actual durations of each installation method vary depending on the type and size of the pile. In order to calculate distances to the Level A harassment and Level B harassment sound thresholds for piles of various sizes and equipment being used in this project, NMFS used acoustic monitoring data from other locations to develop source levels (table 4). Note that piles and holes of differing sizes have different sound source levels (SSL). For simplicity and to be precautionary we analyze the largest pile diameter of each type ( e.g., 24-inch (0.61 m) diameter) even though it is possible at some locations in some situations smaller pile diameters may be used or be removed.

Transmission loss ( TL ) is the decrease in acoustic intensity as an acoustic pressure wave propagates out from a source. TL parameters vary with frequency, temperature, sea conditions, current, source and receiver depth, water depth, water chemistry, and bottom composition and topography. The general formula for underwater TL is:

The recommended TL coefficient for most nearshore environments is the practical spreading value of 15. This value results in an expected propagation environment that would lie between spherical and cylindrical spreading loss conditions, which is the most appropriate assumption for the Coast Guard's planned activity.

Using the practical spreading model, the Coast Guard determined underwater noise would fall below the behavioral effects thresholds of 120 dB rms or 160 dB rms for marine mammals at a maximum radial distances from 46 m for impact driving of timber or concrete piles to 13,594 m for DTH (table 5). These distances determine the maximum Level B harassment zones for the project. It should be noted that, based on the geography of many of the sites, sound will not reach the full distance of the Level B harassment isopleth. Generally, due to interaction with land, only a portion of the possible area is ensonified.

When the NMFS Technical Guidance (2016) was published, in recognition of the fact that ensonified area/volume could be more technically challenging to predict because of the duration component in the new thresholds, we developed a User Spreadsheet that includes tools to help predict a simple isopleth that can be used in conjunction with marine mammal density or occurrence to help predict takes. We note that, because of some of the assumptions included in the methods used for these tools, we anticipate that isopleths produced are typically going to be overestimates of some degree, which may result in some degree of overestimate of take by Level A harassment. However, these tools offer the best way to predict appropriate isopleths when more sophisticated three dimensional modeling methods are not available, and NMFS continues to develop ways to quantitatively refine these tools, and will qualitatively address the output where appropriate. For stationary sources such as pile driving or DTH, NMFS User Spreadsheet predicts the closest distance at which, if a marine mammal remained at that distance the whole duration of the activity, it would not incur PTS.

Inputs used in the User Spreadsheet (table 6), and the resulting isopleths are reported below (table 7). We analyzed scenarios with up to five piles per day to account for maximum possible production rates. Level A harassment thresholds for impulsive sound sources (impact pile driving and DTH) are defined for both the cumulative sound exposure level (SEL cum ) and Peak sound pressure level (SPL), with the threshold that results in the largest modeled isopleth for each marine mammal hearing group used to establish the Level A harassment isopleth. In this analysis, Level A harassment isopleths based on SEL cum were always larger than those based on Peak SPL.

The above input scenarios lead to a Level A harassment isopleth of 0 to 517.1 m, depending on the marine mammal hearing group and scenario (table 7).

In this section we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculations. Here we describe how the information provided above is brought together to produce a quantitative take estimate.

Available information regarding marine mammal occurrence and abundance in the vicinity of the eight facilities includes monitoring data from the NMFS Alaska Regional Office, prior incidental take authorizations, and ESA consultations on additional projects (table 8). When local density information is not available, data aggregated in the Navy's Marine Mammal Species Density Database (U.S. Navy, 2019, 2020) for the Gulf of Alaska or Northwest Testing and Training areas (table 9) or nearby proxies from the monitoring data are used; whichever gives the most precautionary take estimate was chosen.

The data on abundance and occurrence from prior projects is derived from the following projects: (1) Kodiak—Protected Species Observer (PSO) monitoring reports from dock repair projects in 2018 and 2020 (NMFS Alaska Region); (2) Sitka—Data are from the Old Sitka Dock project (86 FR 22392, April 28, 2021); (3) Ketchikan—Data are from the Tongass Narrows project (85 FR 673, January 7, 2020) and other projects in preparation in the area; (4) Valdez—Data are from monitoring for an oil spill response in late April and early May 2020 (NMFS Alaska Region); (5) Juneau—Data are from the Erickson Dock project (84 FR 65360, November 27, 2019) and the Juneau Waterfront Improvement Project (85 FR 18562, April 2, 2020); and, (6) Seward—An incidental harassment authorization application for the Seward Passenger Terminal project recently received by NMFS included information resulting from consultation with the Alaska SeaLife Center, the Kenai Fjords National Park Service, local whale watching companies, and scientific literature to estimate the occurrence of marine mammals in Seward.

To quantitatively assess exposure of marine mammals to noise from pile driving and drilling activities when density estimates are most appropriate, we used the density estimate and the annual anticipated number of work days for each activity at each facility to determine the number of animals potentially harassed on any one day of activity. The calculation is:

For example, exposure estimates at the Ketchikan site for gray whales were calculated by first finding the product of the SE Alaska species density (0.0155 animals/km 2 ), the ensonified area for the activity ( e.g., 1.45 km 2 for vibratory pile driving of timber piles), for the anticipated number of days for that activity each year (10 days/year). After finding the product for each activity for each year, the values were summed to find the total number of takes for that species across all 5 years. This method was used for all species for which local occurrence data were not available.

When occurrence data from prior projects are the most appropriate data for exposure estimation, we used the occurrence estimate (number/unit of time) and the maximum work days (converted to the appropriate unit of time as needed) per year at each facility to determine the number of animals potentially exposed to an activity. The calculation is:

When exposure estimates from density data are used for sites with no local occurrence data and the exposure estimate is less than a typical group size, we increase the estimated take based on that group size to account for the possibility a single group entering the project area would exceed authorized take. Table 10 shows the source of data used in exposure estimates.

The size of the Level B harassment zones for each facility and activity are in table 11. Level A harassment take is only authorized for the activities creating the largest Level A harassment zones: DTH and impact driving of steel pipe piles (see Figures 6-2 through Figure 6-9 in the Coast Guard's application), and for species that would be difficult for observers to detect within large, unconfined zones: high frequency cetaceans and phocid pinnipeds. The topography of sites and facilities in Seward, Juneau, Sitka, and Petersburg are restricted such that noise would be confined to a small area or basin, and PSOs would be able to observe any marine mammals approaching the activity are and Level A shutdown zone with enough warning that work could be stopped before a take by Level A harassment would occur. The facilities at the remaining four sites (Kodiak, Ketchikan, Valdez, and Cordova) are less confined, and PSOs may be unable to observe cryptic species at the calculated isopleths. Therefore, we have conservatively authorized small numbers of take by Level A harassment for high frequency cetaceans and phocid pinnipeds at these sites.