On September 27, 2023, OPM issued a proposed rule (88 FR 66300) to update the 2017 NAICS codes used in FWS wage survey industry regulations with the 2022 NAICS revisions published by OMB. The Federal Prevailing Rate Advisory Committee (FPRAC), the national labor-management committee responsible for advising OPM on matters concerning the pay of FWS employees, recommended these changes by consensus at its May 18, 2023, meeting. The transcript of this meeting can be found on the Federal Wage System website, available at https://www.opm.gov/policy-data-oversight/pay-leave/pay-systems/federal-wage-system/#url=FPRAC .

The 30-day comment period ended on October 27, 2023. OPM received one comment in reference to the impact of the NAICS revisions on the existing wage schedules and FWS wage areas. We note, however, that this final regulation will have no impact on the existing wage schedules and FWS wage areas because there will be no changes in the types of industrial establishments already included in FWS wage surveys. This final rule updates the wage survey industry regulations by adopting the 2022 NAICS codes published by OMB.

The commenter also stated that no guidance or criteria for selecting the NAICS codes were provided. In 1997, OMB developed NAICS and required its use for Federal statistical purposes. NAICS replaced the 1987 Standard Industrial Classification (SIC) industry classification system. On June 20, 2006, OPM published final regulations (71 FR 35373) replacing SIC codes with NAICS codes, following an FPRAC recommendation. This recommendation was based on FPRAC's Wage Survey Methodology Work Group (Work Group) study of the desirability and feasibility of replacing the SIC codes used in FWS regulations at the time with NAICS codes and the effect of this change on industry coverage for FWS wage surveys. The Work Group recommended to FPRAC that OPM replace all SIC codes in the FWS regulations with the most closely corresponding NAICS codes, while making as few changes as possible in the types of industrial establishments that were already included in FWS wage surveys under the SIC system.

We have not made any changes to the final regulations based on this comment. This final regulation is effective February 23, 2024. However, to provide the Department of Defense (DOD) with sufficient time for planning surveys and implementing changes required by OMB's 2022 NAICS revisions, the regulation is applicable for wage surveys ordered to begin on or after May 8, 2024.

As OMB continues to update NAICS codes periodically, OPM will update these regulations to correspond to the updated NAICS codes after consideration of any recommendations submitted by FPRAC.

OPM is issuing this final rule so that its FWS wage survey industry regulations remain consistent and up to date with OMB's NAICS codes. OPM expects this rule to have no significant impact on whether companies are included or excluded from wage surveys. The expected costs would be de minimis since DOD, the lead agency responsible for conducting FWS wage surveys, will only have to make some minor changes in their computer systems to follow the updated NAICS codes. OPM does not anticipate this rule will have a substantial impact on the local economies or a large impact in the local labor markets. OPM will continue to study the implications of such impacts of this or future rules as needed, as this and future changes in OMB's NAICS codes may have higher impact on wage survey methodology.

OPM has examined the impact of this rule as required by Executive Orders 13563, 12866, and 14094, which 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, distributive impacts, and equity). This rule is not considered a “significant regulatory action” under section 3(f) of Executive Order 12866.

The Director of OPM certifies that this rule will not have a significant economic impact on a substantial number of small entities because this rule will affect only Federal agencies and employees.

OPM examined this rule in accordance with Executive Order 13132, Federalism, and determined that it will not have any negative impact on the rights, roles, and responsibilities of State, local, or tribal governments.

This regulation meets the applicable standard set forth in Executive Order 12988.

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

Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (known as the Congressional Review Act or CRA) (5 U.S.C. 801 et seq. ) requires most final rules to be submitted to Congress before taking effect. OPM will submit to Congress and the Comptroller General of the United States a report regarding the issuance of this rule before its effective date. The Office of Information and Regulatory Affairs in the Office of Management and Budget has determined that this rule is not a major rule as defined by the CRA (5 U.S.C. 804).

This rule does not impose any reporting or record-keeping requirements subject to the Paperwork Reduction Act.

Accordingly, OPM amends 5 CFR part 532 as follows:

The Federal Civil Penalties Inflation Adjustment Act of 1990 (FCPIAA)  1 requires the head of each Federal agency to periodically adjust for inflation the minimum and maximum amount of CMPs provided by law within the jurisdiction of that agency. 2 A 2015 amendment to the FCPIAA  3 required agencies to make an initial “catch-up” adjustment to its civil monetary penalties effective no later than August 1, 2016. 4 For every year thereafter effective not later than January 15th, the FCPIAA, as amended, requires agencies to make annual adjustments for inflation, with guidance from the Director of the Office of Management and Budget. 5

The following sections of the CEA provide for CMPs that meet the FCPIAA definition  6 and these CMPs are, therefore, subject to the inflation adjustment: Sections 6(c), 6b, and 6c of the CEA. 7

The FCPIAA annual inflation adjustment, in the context of the CFTC's CMPs, is determined by increasing the maximum penalty by a “cost-of-living adjustment”, rounded to the nearest multiple of one dollar. 8 Annual inflation adjustments are based on the percent change between the October Consumer Price Index for all Urban Consumers (CPI-U) preceding the date of the adjustment, and the prior year's October CPI-U. 9 In this case, the October 2023 CPI-U (307.671)/October 2022 CPI-U (298.012) = 1.03241. 10 In order to complete the 2024 annual adjustment, the CFTC must multiply each of its most recent CMP amounts by the multiplier, 1.03241, and round to the nearest dollar. 11

Applying the FCPIAA annual inflation adjustment methodology results in the following amended CMPs:

The FCPIAA provides that any increase under the FCPIAA in a civil monetary penalty shall apply only to civil monetary penalties, including those whose associated violation predated such increase, which are assessed after the date the increase takes effect. 13 Thus, the new CMP amounts established by this rulemaking shall apply to penalties assessed after January 15, 2024, for violations that occurred on or after November 2, 2015, the effective date of the FCPIAA amendment requiring annual adjustments, the 2015 Act.

The FCPIAA specifically exempted from the Administrative Procedure Act (APA) the rulemakings required to implement annual inflation adjustments. 14 This means that the public procedure the APA generally requires—notice, an opportunity for comment, and a delay in effective date—is not required for agencies to issue regulations implementing the annual adjustment. 15 The Commission further notes that the notice and comment procedures of the APA do not apply to this rulemaking because the Commission is acting herein pursuant to statutory language that mandates that the Commission act in a nondiscretionary matter. 16

The Regulatory Flexibility Act  17 requires agencies with rulemaking authority to consider the impact of certain of their rules on small businesses. A regulatory flexibility analysis is only required for rules for which the agency publishes a general notice of proposed rulemaking pursuant to section 553(b) or any other law. 18 Because, as discussed above, the Commission is not obligated by section 553(b) or any other law to publish a general notice of proposed rulemaking with respect to the revisions being made to Rule 143.8, the Commission additionally is not obligated to conduct a regulatory flexibility analysis.

The Paperwork Reduction Act of 1995 (PRA), 19 which imposes certain requirements on Federal agencies, including the Commission, in connection with their conducting or sponsoring any collection of information as defined by the PRA, does not apply to this rule. This rule amendment does not contain information collection requirements that require the approval of the Office of Management and Budget.

Section 15(a) of the CEA  20 requires the Commission to consider the costs and benefits of its action before issuing a new regulation. Section 15(a) of the CEA further specifies that costs and benefits shall be evaluated in light of five broad areas of market and public concern: (1) protection of market participants and the public; (2) efficiency, competitiveness, and financial integrity of futures markets; (3) price discovery; (4) sound risk management practices; and (5) other public interest considerations.

The Commission believes that benefits of this rulemaking greatly outweigh the costs, if any. As the Commission understands, the statutory provisions by which it is making cost-of-living adjustments to the CMPs in Rule 143.8 were enacted to ensure that CMPs do not lose their deterrence value because of inflation. An analysis of the costs and benefits of these adjustments were made before enactment of the statutory provisions under which the Commission is operating, and limit the discretion of the Commission to the extent that there are no regulatory choices the Commission could make that would supersede the pre-enactment analysis with respect to the five factors enumerated in Section 15(a) of the CEA, or any other factors.

For the reasons set forth in the preamble, the Commodity Futures Trading Commission amends part 143 of chapter I of title 17 of the Code of Federal Regulations as follows:

We are adopting an updated Filer Manual, Volume II: “EDGAR Filing,” Version 68 (December 2023) and amendments to 17 CFR 232.301 (“Rule 301”). The updated Filer Manual is incorporated by reference into the Code of Federal Regulations.

The Filer Manual contains information needed for filers to make submissions on EDGAR. Filers must comply with the applicable provisions of the Filer Manual in order to assure the timely acceptance and processing of filings made in electronic format. 1 Filers must consult the Filer Manual in conjunction with our rules governing mandated electronic filings when preparing documents for electronic submission.

EDGAR is being updated in EDGAR Release 23.4, and corresponding amendments to Volume II of the Filer Manual are being made to reflect these changes, as described below. 2

On July 26, 2023, the Commission adopted new rules to enhance and standardize disclosures regarding cybersecurity risk management, strategy, governance, and incidents by public companies that are subject to the reporting requirements of the Securities Exchange Act of 1934. 3 The new rules require registrants to disclose material cybersecurity incidents on new Item 1.05 of Forms 8-K, 8-K12B, 8-K12G3, 8-K15D5, 8-K/A, 8-K12B/A, 8-K12G3/A, and 8-K15D/A, and describe certain aspects of the incident's nature, scope, and timing, as well as its material impact or reasonably likely material impact on the registrant, within four business days after a registrant determines the cybersecurity incident is material. EDGAR will be modified to add new Item 1.05 to the relevant forms to allow registrants to disclose the required information.

On October 10, 2023, the Commission adopted amendments to certain rules that govern beneficial ownership reporting. These rule revisions both shorten filing deadlines for initial and amended reports and require that all information disclosed within the reports, excluding exhibits, be filed using structured, machine-readable language. 4 To the extent that a beneficial owner wishes to submit an amendment to a Schedule 13D on EDGAR as a combined filing with a Schedule TO, however, the combined filing would not be required or allowed to be filed using structured, machine-readable language. EDGAR will be modified accordingly.

In addition, EDGAR will be modified such that when the amendments become effective on February 5, 2024, a Schedule 13D, Schedule 13D/A, Schedule 13G, and Schedule 13G/A filed before 10 p.m. eastern time on a day that EDGAR is operating will receive a filing date identical to the EDGAR received date and will be disseminated until 10 p.m. eastern time.

On September 20, 2023, the Commission amended rules under the Investment Company Act of 1940 to clarify certain broad categories of investment company names that are likely to mislead investors about an investment company's investments and risks. 5 To implement this rulemaking, EDGAR will be updated to support a new taxonomy—FND—with 2023 and 2022 versions. EDGAR will also be updated to accept Inline XBRL submissions on Forms N-8B-2 and S-6.

EDGAR will be updated to remove the following obsolete forms from the EDGARLink Online Form Submission Types list:

• N-LIQUID and N-LIQUID/A—On November 2, 2020, the Commission revised and changed the name of Form N-LIQUID to Form N-RN. 6 As a result, EDGAR was updated to add new Form N-RN submission types. The N-LIQUID submission types will be retired since that version of the form is no longer in effect. Filers, instead, should submit Form N-RN.

• 24F-2NT and 24F-2NT/A—On April 8, 2020, the Commission required filers to file Form 24F-2 in XML instead of ASCII/HTML. 7 Beginning February 1, 2022, filers have been required to submit submission types 24F-2NT and 24F-2NT/A in a structured XML format. The links to the invalid ASCII/HTML versions of the form are being removed.

• F-4EF and F-4 POS—The submission types F-4EF and F-4POS are being removed as Form F-4 does not have an automatically effective provision. This change will also streamline the implementation of a fee payment validation function, which is being implemented as part of the Commission's Filing Fee Disclosure and Payment Methods Modernization Rule.

On October 13, 2021, the Commission adopted amendments to modernize filing fee disclosure and payment methods. 8 EDGAR will be updated to allow filers to voluntarily choose to comply with the rule's requirements to disclose filing fee calculation table(s) and related information in the EX-FILING FEES exhibit in Inline XBRL format for 72 fee-bearing form types beginning January 31, 2024. The changes to EDGAR will also allow the phase-in of the Inline XBRL filing fee requirements over a period of approximately 18 months:

○ January 31, 2024—Filers voluntarily file fee data in Inline XBRL format (approximately six months prior to July 31, 2024).

○ July 31, 2024—Large Accelerated Filers required to submit fee data in Inline XBRL format.

○ July 31, 2025—Compliance by all filers required, including certain investment companies that file registrations on Forms N-2 and N-14.

Along with the adoption of the updated Filer Manual, we are amending Rule 301 of Regulation S-T to provide for the incorporation by reference into the Code of Federal Regulations of the current revisions. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.

The updated EDGAR Filer Manual is available at https://www.sec.gov/edgar/filerinformation/current-edgar-filer-manual.

Because the Filer Manual and rule amendments relate solely to agency procedures or practice and do not substantially alter the rights and obligations of non-agency parties, publication for notice and comment is not required under the Administrative Procedure Act (“APA”). 9 It follows that the amendments do not require analysis under requirements of the Regulatory Flexibility Act  10 or a report to Congress under the Small Business Regulatory Enforcement Fairness Act of 1996. 11

The effective date for the updated Filer Manual and related rule amendments is January 24, 2024. In accordance with the APA, 12 we find that there is good cause to establish an effective date less than 30 days after publication of these rules. The Commission believes that establishing an effective date less than 30 days after publication of these rules is necessary to coordinate the effectiveness of the updated Filer Manual with the related system upgrades.

We are adopting the amendments to Regulation S-T under the authority in Sections 6, 7, 8, 10, and 19(a) of the Securities Act of 1933, 13 Sections 3, 12, 13, 14, 15, 15B, 23 and 35A of the Securities Exchange Act of 1934, 14 Section 319 of the Trust Indenture Act of 1939, 15 and Sections 8, 30, 31, and 38 of the Investment Company Act of 1940. 16

In accordance with the foregoing, title 17, chapter II of the Code of Federal Regulations is amended as follows:

On December 21, 2023, the Departments of Health and Human Services (HHS), Labor, and the Treasury (collectively, the Departments) published FR Doc. 2023-27931 (88 FR 88494), entitled “Federal Independent Dispute Resolution (IDR) Process Administrative Fee and Certified IDR Entity Fee Ranges” (final rules) related to the fees established by the No Surprises Act for the Federal IDR process, as established by the Consolidated Appropriations Act, 2021. The final rules (88 FR 88524 and 88525) contained non-substantive technical errors in the amendatory instructions for the regulation text and the HHS title that are identified in section II. of this document and corrected in section IV. of this document. The provisions in this correction document are effective as of the effective date of the final rules, because the Departments determined there is good cause to waive any delay in effective date for the reasons set forth in section III. of this document. Accordingly, the corrections are effective January 22, 2024.

The final rules amended existing regulations to provide that the administrative fee amount charged by the Departments to participate in the Federal IDR process and the ranges for certified IDR entity fees for single and batched determinations will be set by the Departments through notice and comment rulemaking. The preamble to the final rules also set forth the methodology used to calculate the administrative fee and the considerations used to develop the certified IDR entity fee ranges. The final rules also finalized the amount of the administrative fee and the certified IDR entity fee ranges for disputes initiated on or after the effective date of the final rules. Below, the Departments summarize the errors in the final rules and describe the corrections that the Departments are making in this document.

In the final rules the Departments inadvertently made technical errors in the amendatory instructions for the regulation text for all three Departments. Amendatory instruction 3.h. incorrectly stated that the Department of the Treasury was removing “; and” at the end of newly redesignated 26 CFR 54.9816-8T(e)(2)(xii) and adding a period in its place. Similarly, amendatory instruction 5.h. incorrectly stated that the Department of Labor was removing “; and” at the end of newly redesignated 29 CFR 2590.716-8(e)(2)(xii) and adding a period in its place, and amendatory instruction 7.h. incorrectly stated that the Department of Health and Human Services was removing “; and” at the end of newly redesignated 45 CFR 149.510(e)(2)(xii) and adding a period in its place. Instead, the Departments intended for these amendments to apply to newly redesignated 26 CFR 54.9816-8T(e)(2)(xi), 29 CFR 2590.716-8(e)(2)(xi), and 45 CFR 149.510(e)(2)(xi), respectively, rather than newly redesignated 26 CFR 54.9816-8T(e)(2)(xii), 29 CFR 2590.716-8(e)(2)(xii), and 45 CFR 149.510(e)(2)(xii), which do not include “; and” at the end of each paragraph and already end with periods. Finally, the Departments made a typographical error in the title line for HHS and incorrectly referenced 49 CFR subtitle A rather than 45 CFR subtitle A. Accordingly, the Departments are revising the title line for HHS to accurately reflect the correct title.

Under the Administrative Procedure Act (APA) (5 U.S.C. 551, et seq. ), while a general notice of proposed rulemaking and an opportunity for public comment is generally required before the promulgation of regulations, this is not required when an agency, for good cause, finds that notice and public comment are impracticable, unnecessary, or contrary to the public interest and incorporates a statement of the reasons for that finding in the document.

The APA also generally requires that a final rule be effective no sooner than 30 days after the date of publication in the Federal Register . Sections 553(b)(B) and 553(d)(3) of the APA provide for exceptions from the APA notice and comment and delay in effective date requirements. Section 553(b)(B) of the APA authorizes an agency to dispense with normal notice and comment rulemaking procedures for good cause if the agency makes a finding that the notice and comment process is impracticable, unnecessary, or contrary to the public interest and includes a statement of the finding and the reasons for it in the rule. Similarly, section 553(d)(3) of the APA allows the agency to avoid the 30-day delay in effective date where good cause is found and the agency includes in the rule a statement of the finding and the reasons for it.

The Departments are publishing this technical correction without advance notice or an opportunity for comment because it falls under the “good cause” exception of the APA, 5 U.S.C. 553(b)(B).

This document corrects technical and typographical errors made in the final rules, which were published in accordance with the APA after the Departments proposed the rules and provided the public with an opportunity to comment on the proposals, and will be effective on January 22, 2024. The corrections contained in this document do not make any substantive changes to the policies adopted in the final rules and merely make typographical corrections to the amendatory instructions of the regulation text and the HHS title line. Therefore, the Departments find for good cause that it is impracticable, unnecessary, and contrary to the public interest to undertake further notice and comment procedures to incorporate these corrections.

The Departments are also waiving the 30-day delay in effective date for these corrections. It is in the public interest to ensure that the final rules setting forth requirements for group health plans, health insurance issuers offering group or individual health insurance coverage, providers, facilities, and providers of air ambulance services relating to the administrative fee amount and certified IDR entity fee ranges for participation in the Federal IDR process accurately state the Departments' policies as of the date they take effect. Therefore, the Departments find that delaying the effective date of these corrections beyond the January 22, 2024 effective date of the final rules would be contrary to the public interest. In doing so, the Departments find good cause to waive the 30-day delay in the effective date.

In FR Doc. 2023-27931 of December 21, 2023 (88 FR 88494), the following corrections are made:

On January 27, 2023, the Coast Guard published an NPRM, with a request for comments, entitled “Drawbridge Operation Regulation; Housatonic River, Stratford, CT” in the Federal Register (88 FR 5293). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to this regulatory change. During the comment period that ended February 27, 2023, we received no comments.

The Coast Guard is issuing this rule under 33 U.S.C. 499. The Metro-North (Devon) Bridge at mile 3.9, across the Housatonic River, Stratford, CT, has a vertical clearance of 19 feet at mean high water and a horizontal clearance of approximately 83 feet. Waterway users include recreational and commercial vessels, including fishing vessels.

The existing drawbridge operating regulations are listed at 33 CFR 117.207(b). MNR is requesting the modification of the requirements in 33 CFR part 117.207 to align with the existing requirements for the Metro-North “WALK” Bridge, across the Norwalk River, at mile 0.1.

The Devon Bridge is located at one of the busiest rail segments in the United States and the Northeast Corridor. Openings at Devon Bridge, between the calendar years of 2019 and 2021, resulted in twenty-one (21) delays to MNR train service. A delay due to a bridge opening has cascading affects, resulting in multiple delayed and late trains. Delays due to the openings of Devon Bridge were notably high among the drawbridges on MNR service territory. Aligning the Devon Bridge regulation with the WALK Bridge regulation 33 CFR 117.217(b), provides a balance between railroad operations and the interest of waterway users.

The Coast Guard provided a comment period of 30 days and no comments were received.

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 section 3(f) of Executive Order 12866, as amended by Executive Order 14094 (Modernizing Regulatory Review). Accordingly, it has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the ability of vessels to still transit the bridge given advanced notice.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rule. 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 bridge 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 contact 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 calls for no 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 Management Directive 023-01, Rev.1, associated implementing instructions, and Environmental Planning Policy COMDTINST 5090.1 (series) which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f). The Coast Guard has 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 promulgates the operating regulations or procedures for drawbridges and is categorically excluded from further review, under paragraph L49, of Chapter 3, Table 3-1 of the U.S. Coast Guard Environmental Planning Implementation Procedures.

Neither a Record of Environmental Consideration nor a Memorandum for the Record are required for this rule.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 117 as follows:

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register OMB Office of Management and Budget NPRM Notice of Proposed Rulemaking (Advance, Supplemental) § Section U.S.C. United States Code MNR Metro-North Railroad II. Background Information and Regulatory History

On August 25, 2023, the Coast Guard published a supplemental notice of proposed rulemaking (SNPRM), with a request for comments, entitled “Drawbridge Operation Regulation; Housatonic River, Stratford, CT” in the Federal Register (88 FR 58174). There we stated why we issued the SNPRM and invited comments on our proposed regulatory action related to this regulatory change. During the comment period that ended September 25, 2023, we received no comments.

The Coast Guard is issuing this rule under 33 U.S.C. 499. The Metro-North (Cos Cob) Bridge at mile 1.0, across Mianus River, Greenwich, CT, has a vertical clearance of 20 feet at mean high water and a horizontal clearance of approximately 67 feet. Waterway users include recreational and commercial vessels, including fishing vessels.

The existing drawbridge operating regulations are listed at 33 CFR 117.209. Under the current regulation, the draw shall open on signal from 5 a.m. to 9 p.m. but no later than 20 minutes after the signal to open unless a train is scheduled to cross. Once the train scheduled to cross has passed the Greenwich or Riverside stations, the bridge will open once the train has made passage. From April 1 through October 31, from 9 p.m. to 5 a.m., the bridge will open after at least a four-hour advance notice is given. From November 1 through March 30, from 9 p.m. to 5 a.m., the bridge will open after at least a twenty-four-hour advance notice is given.

MNR requested the modification to the requirements in 33 CFR part 117.209 to align with the existing requirements for the Metro-North “WALK” Bridge, across the Norwalk River, at mile 0.1.

The Cos Cob Bridge is located at one of the busiest rail segments in the United States and the Northeast Corridor. Openings at Cos Cob Bridge, between the calendar years of 2019 and 2021, resulted in seventy-one (71) delays to MNR train service. A delay due to a bridge opening has cascading affects, resulting in multiple delayed and late trains. Delays due to the openings of Cos Cob Bridge were notably high among the drawbridges on MNR service territory. Aligning the Cos Cob Bridge regulation with the WALK Bridge regulation 33 CFR 117.217(b) provides a balance between railroad operations and the interest of waterway users.

During the comment period that ended on September 23, 2023, no comments were received. Accordingly, no changes were made to the regulatory text.

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 section 3(f) of Executive Order 12866, as amended by Executive Order 14094 (Modernizing Regulatory Review). Accordingly, it has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the ability of vessels to still transit the bridge given advanced notice.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rule. 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 bridge 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 contact 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 calls for no 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 Management Directive 023-01, Rev.1, associated implementing instructions, and Environmental Planning Policy COMDTINST 5090.1 (series) which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f). The Coast Guard has 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 promulgates the operating regulations or procedures for drawbridges and is categorically excluded from further review, under paragraph L49, of Chapter 3, Table3-1 of the U.S. Coast Guard Environmental Planning Implementation Procedures.

Neither a Record of Environmental Consideration nor a Memorandum for the Record are required for this rule.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 117 as follows:

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register OMB Office of Management and Budget NPRM Notice of Proposed Rulemaking (Advance, Supplemental) § Section U.S.C. United States Code MNR Metro North Railroad II. Background Information and Regulatory History

On January 27, 2023, the Coast Guard published an NPRM, with a request for comments, entitled “Drawbridge Operation Regulation; Saugatuck River, Westport, CT” in the Federal Register (88 FR 5291). There we stated why we issued the NPRM and invited comments on our proposed regulatory action related to this regulatory change. During the comment period that ended February 27, 2023, we received no comments.

The Coast Guard is issuing this rule under 33 U.S.C. 499. The Metro-North (SAGA) Bridge at mile 1.1, across the Saugatuck River, Westport, CT, has a vertical clearance of 13 feet at mean high water and a horizontal clearance of 57 feet. Waterway users include recreational and commercial vessels, including fishing vessels.

The existing drawbridge operating regulations are listed at 33 CFR 117.221(b). MNR is requesting the modification of the requirements in 33 CFR part 117.221(b) to align with the existing requirements for the Metro-North “WALK” Bridge, across the Norwalk River, at mile 0.1.

The SAGA Bridge is located at one of the busiest rail segments in the United States and the Northeast Corridor. Openings at the SAGA Bridge, between the calendar years of 2019 and 2021, resulted in five (5) delays to MNR train service. A delay due to a bridge opening has cascading affects, resulting in multiple delayed and late trains. Delays due to the openings of SAGA Bridge were notably high among the drawbridges on MNR service territory. Aligning the SAGA Bridge regulation with the WALK Bridge regulation 33 CFR 117.217(b), provides a balance between railroad operations and the interest of waterway users.

The Coast Guard provided a comment period of 30 days and no comments were received.

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 section 3(f) of Executive Order 12866, as amended by Executive Order 14094 (Modernizing Regulatory Review). Accordingly, it has not been reviewed by the Office of Management and Budget (OMB). This regulatory action determination is based on the ability of vessels to still transit the bridge given advanced notice.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rule. 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 bridge 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 contact 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 calls for no 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 Management Directive 023-01, Rev.1, associated implementing instructions, and Environmental Planning Policy COMDTINST 5090.1 (series) which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f). The Coast Guard has 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 promulgates the operating regulations or procedures for drawbridges and is categorically excluded from further review, under paragraph L49, of Chapter 3, Table3-1 of the U.S. Coast Guard Environmental Planning Implementation Procedures. Neither a Record of Environmental Consideration nor a Memorandum for the Record are required for this rule.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 117 as follows:

The Secretary is issuing updated waivers and modifications of statutory and regulatory requirements governing the Federal student financial aid programs under the authority of the HEROES Act. As described below, these waivers and modifications primarily focus on servicemembers who are called for active duty. We note below where there is overlap between the waivers and modifications issued in this document and the waivers and modifications related to the Fresh Start Initiative, which is described below.

In a document published in the Federal Register on December 12, 2003 (68 FR 69312), the Secretary first exercised the authority under the HEROES Act (Pub. L. 108-76, 20 U.S.C. 1098bb(b)) and announced waivers and modifications of statutory and regulatory provisions designed to assist “affected individuals.” Under 20 U.S.C. 1098ee(2), the term “affected individual” means an individual who—

• Is serving on active duty during a war or other military operation or national emergency;

• Is performing qualifying National Guard duty during a war or other military operation or national emergency;

• Resides or is employed in an area that is declared a disaster area by any Federal, State, or local official in connection with a national emergency; or

• Suffered direct economic hardship as a direct result of a war or other military operation or national emergency, as determined by the Secretary.

Please note that these waivers and modifications do not apply to an individual who resides or is employed in an area declared a disaster area by any Federal, State, or local official unless that declaration has been made in connection with a national emergency.

In a document published in the Federal Register on September 29, 2017 (82 FR 45465), the Secretary updated the waivers and modifications to reflect statutory and regulatory changes that had occurred since the most recent prior waiver and modification document was published. The 2017 waivers and modifications expired on September 30, 2022.

The Secretary is updating the waivers and modifications to reflect statutory and regulatory changes that have occurred since publication of the 2017 waivers and modifications. The waivers and modifications in this document will expire on January 24, 2029. With a few exceptions, the waivers and modifications in this document are the same as the 2017 waivers and modifications. However, the 2017 waivers and modifications have been updated as follows:

(1) The Secretary is not including in this document the 2017 waiver that allowed institutions to use the applicant's original Expected Family Contribution (EFC) (the EFC based on the income and tax information reported on the Free Application for Federal Student Aid (FAFSA®)), the EFC based on the data from the first calendar year of the award year, or the EFC based on another annual income that more accurately reflects the family's current financial circumstances.

A financial aid administrator has the authority to use professional judgment on a case-by-case basis for affected individuals. The Department believes that the authority provided through the 2017 waiver is already within the authority of the financial aid administrator. The Department has also issued Dear Colleague Letters GEN-21-02 and GEN-22-15 further explaining the authority and responsibilities of the financial aid administrator in regard to professional judgment.

(2) The Secretary is not including the 2017 waiver and modification that allowed institutions to exercise professional judgment to make adjustments to the cost of attendance or the items used in calculating the EFC on a broader basis than the case-by-case basis reflected in the HEA. Accordingly, an institution that exercises professional judgment must make those determinations on a case-by-case basis for affected individuals.

(3) The Secretary is not including the 2017 waivers and modifications related to verification. The Secretary will announce any changes related to verification in a separate Federal Register notice, Dear Colleague letter, or electronic announcement.

The Secretary is issuing these waivers and modifications under the authority of the HEROES Act, 20 U.S.C. 1098bb(a). In accordance with the HEROES Act, the Secretary is providing the waivers and modifications of statutory and regulatory requirements applicable to the student financial assistance programs under title IV of the HEA that the Secretary believes are appropriate to ensure that—

• Affected individuals who are recipients of student financial assistance under title IV are not placed in a worse position financially in relation to that financial assistance because they are affected individuals;

• Affected individuals who are recipients of student financial assistance are not unduly subject to administrative burden or inadvertent technical violations or defaults;

• Affected individuals are not penalized when a determination of need for student financial assistance is calculated;

• Affected individuals are not required to return or repay an overpayment of grant funds based on the HEA's Return of Title IV Funds provision; and

• Entities that participate in the student financial assistance programs under title IV of the HEA and that are located in areas that are declared disaster areas by any Federal, State, or local official in connection with a national emergency, or whose operations are significantly affected by such a disaster, receive temporary relief from administrative requirements.

In 20 U.S.C. 1098bb(b)(1), the HEROES Act further provides that section 437 of the General Education Provisions Act (20 U.S.C. 1232) and section 553 of the Administrative Procedure Act (5 U.S.C. 553) do not apply to the contents of this document.

The following terms used in this document are defined in 20 U.S.C. 1098ee: “active duty,” “military operation,” “national emergency,” “qualifying National Guard duty during a war or other military operation or national emergency,” and “serving on active duty during a war or other military operation or national emergency.”

The Department intends for each of the waivers and modifications described in this document to be severable. If any waiver or modification in this document or its application to any person, act, or practice is held invalid, the remainder of the waivers and modifications or the application of such waiver or modification to any person, act, or practice will not be affected thereby.

The following waivers and modifications are grouped into three categories, according to the affected individuals to whom they apply.

Category 1: The Secretary is waiving or modifying the following requirements of title IV of the HEA and the Department's regulations for ALL affected individuals.

Section 484B(b)(2) of the HEA and 34 CFR 668.22(h)(3)(ii) require a student to return or repay, as appropriate, unearned grant funds for which the student is responsible under the Return of Title IV Funds calculation. For a student who withdraws from an institution because of the student's status as an affected individual, the Secretary is waiving these statutory and regulatory requirements so that a student is not required to return or repay any overpayment of grant funds based on the Return of Title IV Funds provisions.

For these students, the Secretary also waives 34 CFR 668.22(h)(4), which—

• Requires an institution to notify a student of a grant overpayment and the actions the student must take to resolve the overpayment;

• Denies eligibility to a student who owes a grant overpayment and does not take an action to resolve the overpayment; and

• Requires an institution to refer a grant overpayment to the Secretary under certain conditions.

Therefore, an institution is not required to contact the student, notify the National Student Loan Data System, or refer the overpayment to the Secretary. However, the institution must document in the student's file the amount of any overpayment as part of the documentation of the application of this waiver.

The student is not required to return or repay an overpayment of grant funds based on the Return of Title IV Funds provision. Therefore, an institution must not apply any title IV credit balance to the grant overpayment prior to: using a credit balance to pay authorized charges; paying any amount of the title IV credit balance to the student or parent, in the case of a parent PLUS loan; or using the credit balance to reduce the student's title IV loan debt (with the student's authorization) as provided in Dear Colleague Letter GEN-04-03 (February 2004; revised November 2004).

Category 2: The Secretary is waiving or modifying requirements in the following provisions of title IV of the HEA and the Department's regulations for affected individuals who are serving on active duty or performing qualifying National Guard duty during a war or other military operation or national emergency, or who reside or are employed in a disaster area.

Under 34 CFR 668.22(a)(6)(iii)(A)( 5 ) and (D), a student (or parent for a parent PLUS loan) must be provided a post-withdrawal disbursement of a title IV loan if the student (or parent) responds to an institution's notification of the post-withdrawal disbursement within 14 days of the date that the institution sent the notice, or a later deadline set by the institution. If a student or parent submits a late response, an institution may, but is not required to, make the post-withdrawal disbursement.

The Secretary is modifying this requirement so that, for a student who withdraws because of their status as an affected individual in this category and who is eligible for a post- withdrawal disbursement, the 14-day time period in which the student (or parent) must normally respond to the offer of the post-withdrawal disbursement is extended to 45 days, or to a later deadline set by the institution. If the student or parent submits a response after the designated period, the institution may, but is not required to, make the post-withdrawal disbursement. As required under the current regulations, if the student or parent submits the timely response instructing the institution to make all or a portion of the post-withdrawal disbursement, or the institution chooses to make a post-withdrawal disbursement based on receipt of a late response, the institution must disburse the funds within 180 days of the date of the institution's determination that the student withdrew.

Under 34 CFR 668.22(d)(3)(iii)(B), a student is required to provide a written, signed, and dated request, which includes the reason for that request, for an approved leave of absence prior to the leave of absence. However, if unforeseen circumstances prevent a student from providing a prior written request, the institution may grant the student's request for a leave of absence if the institution documents its decision and collects the written request at a later date. It may be appropriate in certain limited cases for an institution to provide an approved leave of absence to a student who must interrupt his or her enrollment because he or she is an affected individual in this category. Therefore, the Secretary is waiving the requirement that the student provide a written request for affected individuals who have difficulty providing a written request as a result of being an affected individual in this category. The institution's documentation of its decision to grant the leave of absence must include, in addition to the reason for the leave of absence, the reason for waiving the requirement that the leave of absence be requested in writing.

Under 34 CFR 668.164(h)(2), an institution must pay any title IV credit balance to the student, or parent in the case of a parent PLUS loan, as soon as possible, but no later than 14 days after the balance occurred if the balance occurred after the first day of class of a payment period, or 14 days after the first day of class of a payment period if the balance occurred on or before the first day of class of that payment period. If the student (or parent) has provided authorization, an institution may use a title IV credit balance to reduce the borrower's total title IV loan debt, not just the title IV loan debt for the period for which the Return of Title IV Funds calculation is performed.

For students who withdraw because they are affected individuals in this category, the Secretary finds that the institution has met the 14-day requirement under 34 CFR 668.164(h)(2) if, within that time frame, the institution attempts to contact the student (or parent) to suggest that the institution be authorized to return the credit balance to the loan program(s).

Based upon the instructions of the student (or parent), the institution must promptly return the funds to the title IV loan programs or pay the credit balance to the student (or parent).

In addition, if an institution chooses to attempt to contact the student (or parent) for authorization to apply the credit balance to reduce the student's title IV loan debt, it must allow the student (or parent) 45 days to respond. If there is no response within 45 days, the institution must promptly pay the credit balance to the student (or parent) or return the funds to the title IV programs if the student (or parent) cannot be located.

Consistent with the guidance provided in Dear Colleague Letter GEN-04-03 (February 2004; revised November 2004), the institution may also choose to pay the credit balance to the student (or parent) without first requesting permission to apply the credit balance to reduce the student's title IV loan debt.

Under 34 CFR 668.165(a)(4)(ii), an institution must return loan or TEACH Grant proceeds, cancel the loan or TEACH Grant, or do both, if the institution receives a loan or TEACH Grant cancellation request from a student or parent—

• By the later of the first day of a payment period or 14 days after the date the institution notifies the student or parent of his or her right to cancel all or a portion of a loan or TEACH Grant if the institution obtains affirmative confirmation from the student under 34 CFR 668.165(a)(6)(i); or

• Within 30 days of the date the institution notifies the student or parent of their right to cancel all or a portion of a loan if the institution does not obtain affirmative confirmation from the student under 34 CFR 668.165(a)(6)(i).

Under 34 CFR 668.165(a)(4)(iii), if an institution receives a loan cancellation request from a borrower after the period specified in 34 CFR 668.165(a)(4)(ii), the institution may, but is not required to, comply with the request. The Secretary is modifying this requirement so that an institution must allow at least 60 days for the student or parent to request the cancellation of all or a portion of a loan or TEACH Grant for which proceeds have been credited to the account at the institution. If an institution receives a loan or TEACH Grant cancellation request after the 60-day period, the institution may, but is not required to, comply with the request.

Under 34 CFR 668.165(b)(1), an institution must obtain a written authorization from a student or parent, as applicable, to—

• Use title IV funds to pay for educationally related charges incurred by the student at the institution other than charges for tuition and fees and, as applicable, room and board; and

• Hold on behalf of the student or parent any title IV funds that would otherwise be paid directly to the student or parent.

The Secretary is modifying these requirements to permit an institution to accept an authorization provided by a student (or parent for a parent PLUS loan) orally, rather than in writing, if the student or parent is prevented from providing a written authorization because of his or her status as an affected individual in this category. The institution must document the oral consent or authorization.

In cases where a student failed to meet the institution's satisfactory academic progress standards as a direct result of being an affected individual in this category, institutions may apply the exception provision of “other special circumstances” in 34 CFR 668.34(a)(9)(ii).

Sections 428(b)(7)(D) of the HEA and 34 CFR 685.207(b)(2)(ii) and (c)(2)(ii) exclude from a Direct Loan borrower's initial grace period any period during which a borrower who is a member of an Armed Forces reserve component is called or ordered to active duty for a period of more than 30 days. The statutory and regulatory provisions further require that any single excluded period may not exceed three years and must include the time necessary for the borrower to resume enrollment at the next available regular enrollment period. Lastly, any borrower who is in a grace period when called or ordered to active duty is entitled to another six or nine-month grace period, as applicable, upon completion of the excluded period of service.

The Secretary is modifying these statutory and regulatory requirements to exclude from a title IV borrower's initial grace period, any period, not to exceed three years, during which a borrower is an affected individual in this category. Any excluded period must include the time necessary for an affected individual in this category to resume enrollment at the next available enrollment period.

A title IV borrower is considered to be in an “in-school” status and is not required to make payments on a title IV loan that has not entered repayment as long as the borrower is enrolled at an eligible institution on at least a half-time basis. Under sections 428(b)(7)(A) and 464(c)(1)(A) of the HEA and 34 CFR 674.31(b)(2), 682.209(a), and 685.207(b), (c), and (e)(2) and (3), when a borrower of a loan under the Federal Family Education Loan (FFEL) Program, the Direct Loan Program, or the Federal Perkins Loan Program ceases to be enrolled at an eligible institution on at least a half-time basis, the borrower is obligated to begin repayment of the loan after a six or nine-month grace period, depending on the title IV loan program under which the loan was made and the terms of the borrower's promissory note. The Secretary is modifying the statutory and regulatory requirements that obligate an “in-school” borrower who has dropped below half-time status to begin repayment if the borrower is an affected individual in this category, by requiring the holder of the loan to maintain the loan in an “in-school” status for a period not to exceed three years, including the time necessary for the borrower to resume enrollment in the next regular enrollment period, if the borrower is planning to go back to school.

Under HEA sections 427(a)(2)(C)(i), 428(b)(1)(M)(i), 428B(a)(2) and (d)(1), 428C(b)(4)(C), 455(f)(2)(A), and 464(c)(2)(A)(i) and 34 CFR 674.34(b)(1), 682.210(b)(1)(i), (ii), and (iii), 682.210(s)(2), (3), and (4), 685.204(b), 685.204(c)(1), 685.204(d), and 685.204(e), a title IV borrower is eligible for a deferment on a loan during periods after the commencement or resumption of the repayment period on the loan when the borrower is enrolled and in attendance as a regular student on at least a half-time basis (or full-time, if required by the terms of the borrower's promissory note) at an eligible institution; enrolled and in attendance as a regular student in a course of study that is part of a graduate fellowship program; engaged in an eligible rehabilitation training program; or, for Federal Perkins Loan borrowers, engaged in graduate or post-graduate fellowship-supported study outside the United States. The borrower's deferment period ends when the borrower no longer meets one of the above conditions. Under 34 CFR 685.204(c)(2), a Direct parent PLUS Loan borrower is eligible for a deferment during the time when the student on whose behalf the loan was obtained is enrolled on at least a half-time basis.

The Secretary is waiving the statutory and regulatory eligibility requirements for this deferment for title IV borrowers who were required to interrupt a graduate fellowship or rehabilitation training program deferment, or who were in an in-school deferment but who left school, because of their status as an affected individual in this category. The holder of the loan is required to maintain the loan in the graduate fellowship, rehabilitation training program, or in-school deferment status for a period not to exceed three years, during which the borrower (or, in the case of an in-school deferment on a parent PLUS loan, the student on whose behalf the loan was obtained) is an affected individual in this category. This period includes the time necessary for the borrower to resume the graduate fellowship program, resume a rehabilitation training program, or resume enrollment in the next regular enrollment period if the borrower (or in the case of a parent PLUS loan, the student) returns to school.

Under section 464(e) of the HEA and 34 CFR 674.33(d)(2), there is a three-year cumulative limit on the length of forbearances that a Federal Perkins Loan borrower can receive. To assist Federal Perkins Loan borrowers who are affected individuals in this category, the Secretary is waiving these statutory and regulatory requirements so that any forbearance based on a borrower's status as an affected individual in this category is excluded from the three-year cumulative limit.

Under section 464(e) of the HEA and 34 CFR 674.33(d)(2) and (3), a school must receive a request and supporting documentation from a Federal Perkins Loan borrower before granting the borrower a forbearance, the terms of which must be in the form of a written agreement. The Secretary is waiving these statutory and regulatory requirements to require an institution to grant forbearance based on the borrower's status as an affected individual in this category for a one-year period, including a three-month “transition period” immediately following, without supporting documentation or a written agreement, based on the written or oral request of the borrower, a member of the borrower's family, or another reliable source. The purpose of the three-month transition period is to assist borrowers so that they will not be required to reenter repayment immediately after they are no longer affected individuals in this category. To grant the borrower forbearance beyond the initial 12- to 15-month period, supporting documentation from the borrower, a member of the borrower's family, or another reliable source is required.

Under 34 CFR 674.33(d)(2) and 682.211(i)(1), a Perkins or FFEL borrower who requests forbearance because of a military mobilization must provide the loan holder with documentation showing that he or she is subject to a military mobilization. The Secretary is waiving this requirement to allow a borrower who is not otherwise eligible for the military service deferment under 34 CFR 682.210(t), and 674.34(h) to receive forbearance at the request of the borrower, a member of the borrower's family, or another reliable source for a one-year period, including a three-month transition period that immediately follows, without providing the loan holder with documentation. To grant the borrower forbearance beyond this period, documentation supporting the borrower's military mobilization must be submitted to the loan holder.

The Secretary will apply the forbearance waivers and modifications in this section to loans held by the Department.

In accordance with 34 CFR part 674, subpart C—Due Diligence, and 682.410(b)(6), schools and guaranty agencies must attempt to recover amounts owed from defaulted Federal Perkins Loan and FFEL borrowers, respectively. The Secretary is waiving the regulatory provisions that require schools and guaranty agencies to attempt collection on defaulted loans for the time period during which the borrower is an affected individual in this category and for a three-month transition period. The school or guaranty agency may stop collection activities upon notification by the borrower, a member of the borrower's family, or another reliable source that the borrower is an affected individual in this category. The school or guaranty agency must resume collection activities after the borrower has notified the school or guaranty agency that the affected individual status no longer applies and that the three-month transition period has expired. Alternatively, the school or guaranty agency may rely upon evidence that the borrower is receiving Imminent Danger Pay or Hostile Fire Pay (IDP/HFP) to determine the time frame during which collection should be suspended; collection may be suspended while the borrower is receiving IDP/HFP and for three months after that special pay ends. The loan holder must document in the loan file why it has suspended collection activities on the loan, and the loan holder is not required to obtain evidence of the borrower's status while collection activities have been suspended. The Secretary will apply the waivers described in this paragraph to loans held by the Department.

In March 2021, the Department directed guaranty agencies to halt collection efforts on defaulted loans to be consistent with the treatment of Direct Loans. On April 6, 2022, the Department announced that it would provide borrowers who defaulted on their Federal student loans prior to the COVID-19 pandemic with additional opportunities to get their loans out of default. This initiative, called “Fresh Start” is described in the Department's Notice of updated waivers and modifications of statutory and regulatory provisions published on June 16, 2023 (88 FR 39360). Borrowers who take advantage of this opportunity to get their loans out of default will, as a result, regain eligibility for title IV, HEA Federal student aid, including Federal Pell Grants and campus-based aid like Federal Work-Study. The Fresh Start opportunity will remain available to previously defaulted borrowers for one year after the end of the COVID-19 pandemic student loan payment pause. Borrowers eligible for Fresh Start will have one year to make payment arrangements before being treated as defaulting on their debt and before their loans will be subject to further collection efforts. Fresh Start applies to a broader group of individuals than outlined in this Federal Register notice so for additional information regarding implementation of the Fresh Start Initiative, refer to Electronic Announcement (General 22-58) Information About Restored Aid Eligibility Under Fresh Start Initiative and Dear Colleague Letter GEN-22-13 Federal Student Aid Eligibility for Borrowers with Defaulted Loans.

Depending on the loan program, borrowers may qualify for loan cancellation if they are employed full-time in specified occupations, such as teaching or in law enforcement, or providing eligible volunteer service pursuant to sections 428J, 460(b)(1), and 465(a)(2)(A)-(M) and (3) of the HEA, and 34 CFR 674.53, 674.55, 674.56, 674.57, 674.58, 674.60, 682.216, and 685.217. Generally, to qualify for loan cancellation, borrowers must perform uninterrupted, otherwise qualifying service for a specified length of time (for example, one year) or for consecutive periods of time, such as five consecutive years.

For borrowers who are affected individuals in this category, the Secretary is waiving the requirements that apply to the various loan cancellations that such periods of service be uninterrupted or consecutive, if the reason for the interruption is related to the borrower's status as an affected individual in this category. Therefore, the service period required for the borrower to receive or retain a loan cancellation for which he or she is otherwise eligible will not be considered interrupted by any period during which the borrower is an affected individual in this category, including the three-month transition period. The Secretary will apply the waivers described in this paragraph to loans held by the Department.

A borrower of a Direct Loan or a FFEL Loan must make nine voluntary on-time, monthly payments over 10 consecutive months to rehabilitate a defaulted loan in accordance with section 428F(a) of the HEA and 34 CFR 682.405(a)(2)(i) and 685.211(f)(1). Federal Perkins Loan borrowers must make nine consecutive, on-time monthly payments to rehabilitate a defaulted Federal Perkins Loan in accordance with section 464(h)(1)(A) of the HEA and 34 CFR 674.39(a)(2). To assist title IV borrowers who are affected individuals in this category, the Secretary is waiving the statutory and regulatory requirements that payments made to rehabilitate a loan must be consecutive or made over no more than 10 consecutive months. Loan holders should not treat any payment missed during the time that a borrower is an affected individual in this category, or during the three-month transition period, as an interruption in the number of monthly, on-time payments required to be made consecutively, or the number of consecutive months in which payment is required to be made, for loan rehabilitation. If there is an arrangement or agreement in place between the borrower and loan holder and the borrower makes a payment during this period, the loan holder must treat the payment as an eligible payment in the required series of payments. When the borrower is no longer an affected individual in this category, and the three-month transition period has expired, the required sequence of qualifying payments may resume at the point they were discontinued as a result of the borrower's status. The Secretary will apply the waivers described in this paragraph to loans held by the Department.

Under sections 428F(b) and 464(h)(2) of the HEA and under the definition of “satisfactory repayment arrangement” in 34 CFR 668.35(a)(2), 674.2(b), 682.200(b), and 685.102(b), a defaulted title IV borrower may make six consecutive, on-time, voluntary, full, monthly payments to reestablish eligibility for title IV Federal student financial assistance. To assist title IV borrowers who are affected individuals in this category, the Secretary is waiving statutory and regulatory provisions that require the borrower to make consecutive payments to reestablish eligibility for title IV Federal student financial assistance. Loan holders should not treat any payment missed during the time that a borrower is an affected individual in this category as an interruption in the six consecutive, on-time, voluntary, full, monthly payments required for reestablishing title IV eligibility. If there is an arrangement or agreement in place between the borrower and loan holder and the borrower makes a payment during this period, the loan holder must treat the payment as an eligible payment in the required series of payments. When the borrower is no longer an affected individual or in the three-month transition period for purposes of this document, the required sequence of qualifying payments may resume at the point they were discontinued as a result of the borrower's status. The Secretary will apply the waivers described in this paragraph to loans held by the Department.

Under the definition of “satisfactory repayment arrangement” in 34 CFR 685.102(b), a borrower with a defaulted FFEL or Direct Loan may consolidate the defaulted loan into a Direct Consolidation Loan by making three consecutive, voluntary, on-time, monthly, full payments on the loan. The Secretary is waiving the regulatory requirement that such payments be consecutive. FFEL loan holders should not treat any payment missed during the time that a borrower is an affected individual in this category as an interruption in the three consecutive, voluntary, monthly, full, on-time payments required for establishing eligibility to consolidate a defaulted loan in the Direct Consolidation Loan Program. If there is an arrangement or agreement in place between the borrower and loan holder and the borrower makes a payment during this period, the loan holder must treat the payment as an eligible payment in the required series of payments. When the borrower is no longer an affected individual in this category or in the three-month transition period, the required sequence of qualifying payments may resume at the point they were discontinued as a result of the borrower's status as an affected individual. The Secretary will apply the waivers described in this paragraph to loans held by the Department.

Section 493C(c) of the HEA requires the Secretary to establish procedures for annually determining a borrower's eligibility for the IBR plan, including verification of a borrower's annual income and the annual amount due on the total amount of the borrower's loans. Section 455(e)(1) of the HEA provides that the Secretary may obtain such information as is reasonably necessary regarding the income of a borrower for the purpose of determining the annual repayment obligation of the borrower under an ICR plan. Under current 34 CFR 682.215(e); 685.209(a)(5), (b)(3)(vi), and (c)(4); and 685.221(e), borrowers repaying under the IBR, PAYE, SAVE, formerly known as REPAYE, or ICR plans must annually provide their loan holder with documentation of their income and family size so that the loan holder may, if necessary, adjust the borrower's monthly payment amount based on changes in the borrower's income or family size. Please note that, as of July 1, 2024, the application and annual recertification procedures for the IBR, PAYE, and SAVE plans will be located in §§ 685.209(l) and 682.215(e). Borrowers are required to provide information about their annual income and family size to the loan holder each year by a deadline specified by the holder. If a borrower who is repaying his or her loans under the IBR, PAYE, SAVE (formerly known as REPAYE), or ICR plans fails to provide the required information by the specified deadline, the borrower's monthly payment amount is adjusted and is no longer based on the borrower's income. This adjusted monthly payment amount is generally higher than the payment amount that was based on the borrower's income.

The Secretary is waiving these statutory and regulatory provisions to require loan holders to maintain an affected borrower's payment at the most recently calculated IBR, PAYE, SAVE (formerly known as REPAYE), or ICR monthly payment amount for up to a three-year period, including a three-month transition period immediately following the three-year period, if the borrower's status as an affected individual in this category has prevented the borrower from providing documentation of updated income and family size by the specified deadline.

Category 3: The Secretary is waiving or modifying the following provisions of title IV of the HEA and the Department's regulations for affected individuals who are serving on active duty or performing qualifying National Guard duty during a war or other military operation or national emergency.

The HEROES Act encourages institutions to provide a full refund of tuition, fees, and other institutional charges for the portion of a period of instruction that a student was unable to complete, or for which the student did not receive academic credit, because he or she was called up for active duty or for qualifying National Guard duty during a war or other military operation or national emergency. Alternatively, the Secretary encourages institutions to provide a credit in a comparable amount against future charges.

The HEROES Act also recommends that institutions consider providing easy and flexible reenrollment options to students who are affected individuals in this category. At a minimum, an institution must comply with the requirements of 34 CFR 668.18, which addresses the readmission requirements for service members serving for a period of more than 30 consecutive days under certain conditions. Some institutions must also provide protections to service members who are absent for shorter periods of service, under the Principles of Excellence (Executive Order 13607, issued April 27, 2012). More information is available at: https://www.va.gov/education/choosing-a-school/principles-of-excellence/.

Of course, an institution may provide such treatment to affected individuals other than those who are called up to active duty or for qualifying National Guard duty during a war or other military operation or national emergency. Before an institution makes a refund of institutional charges, it must perform the required Return of Title IV Funds calculations based upon the originally assessed institutional charges. After determining the amount that the institution must return to the title IV Federal student aid programs, any reduction of institutional charges may consider the funds that the institution is required to return. In other words, we do not expect that an institution would both return funds to the Federal programs and also provide a refund of those same funds to the student.

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

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

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of 40 CFR part 180 through the Office of the Federal Register's e-CFR site at https://www.ecfr.gov/current/title-40.

Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2023-0065 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before March 25, 2024. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2023-0065, by one of the following methods:

• Federal eRulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

• Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001.

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at https://www.epa.gov/.

Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at https://www.epa.gov/.

In the Federal Register of March 24, 2023 (88 FR 17778) (FRL-10579-02), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the filing of a pesticide petition (PP IN-11658) by Exponent, Inc., 1150 Connecticut Ave., Suite 1100, Washington, DC 20036, on behalf of UPL NA Inc., 630 Freedom Business Center, Suite 402, King of Prussia, PA 19406. The petition requested that 40 CFR 180.920 be amended by establishing an exemption from the requirement of a tolerance for residues of baicalin anhydrous (CAS Reg. No. 21967-41-9) and baicalin hydrate (CAS Reg. No. 206752-33-2) when used as inert ingredients (stabilizer) in pesticide formulations applied to growing crops pre-harvest limited to a maximum concentration of 10% of the end-use formulation. That document referenced a summary of the petition prepared by Exponent, Inc. on behalf of UPL NA Inc., the petitioner, which is available in the docket, https://www.regulations.gov. There were no comments received in response to the notice of filing. For ease of reading, baicalin is used throughout this document and refers to both baicalin anhydrous and hydrate forms.

Inert ingredients are all ingredients that are not active ingredients as defined in 40 CFR 153.125 and include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): Solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as carrageenan and modified cellulose; wetting, spreading, and dispersing agents; propellants in aerosol dispensers; microencapsulating agents; and emulsifiers. The term “inert” is not intended to imply nontoxicity; the ingredient may or may not be chemically active. Generally, EPA has exempted inert ingredients from the requirement of a tolerance based on the low toxicity of the individual inert ingredients.

Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings but does not include occupational exposure. When making a safety determination for an exemption for the requirement of a tolerance FFDCA section 408(c)(2)(B) directs EPA to consider the considerations in section 408(b)(2)(C) and (D). Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . . .” Section 408(b)(2)(D) lists other factors for EPA consideration making safety determinations, e.g., the validity, completeness, and reliability of available data, nature of toxic effects, available information concerning the cumulative effects of the pesticide chemical and other substances with a common mechanism of toxicity, and available information concerning aggregate exposure levels to the pesticide chemical and other related substances, among others.

EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be clearly demonstrated that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no harm to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.

Consistent with FFDCA section 408(c)(2)(A), and the factors specified in FFDCA section 408(c)(2)(B), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for baicalin including exposure resulting from the exemption established by this action. EPA's assessment of exposures and risks associated with baicalin follows.

EPA has evaluated the available toxicity data and considered their validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the adverse effects caused by baicalin as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies are discussed in this unit.

Baicalin exhibits low levels of acute toxicity via the oral route of exposure. Acute dermal toxicity is expected to be low based on low oral acute toxicity and the absence of clinical signs in a skin irritation study in rabbits. Acute inhalation toxicity is expected to be low based on its low vapor pressure. Baicalin is not a skin sensitizer. Special studies reported no acute adverse effects on respiratory function and the central nervous system (CNS) in rats up to 5,000 mg/kg (equivalent to 3,000 mg/kg baicalin) or on cardiovascular function in dogs up to 1,000 mg/kg (equivalent to 600 mg/kg baicalin).

No effects were seen in subchronic oral toxicity studies in rats up to 2,000 mg/kg/day (~1,200 mg/kg/day baicalin), in mice up to 500 mg/kg/day (~300 mg/kg/day baicalin) and in dogs up to 1,000 mg/kg/day (~630 mg/kg/day baicalin). No increased offspring susceptibility was observed in the available studies as no offspring or maternal effects were observed. Concern for carcinogenicity is low based on a negative result in a mutagenicity study, lack of effects in subchronic studies, and the lack of relevant structural alerts for carcinogenicity.

No evidence of neurotoxicity or immunotoxicity was observed in the available studies. Also, no neurotoxicity was observed in an acute toxicity study evaluating central nervous system effects in rats.

Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see https://www.epa.gov/pesticide-science-and-assessing-pesticide-risks/overview-risk-assessment-pesticide-program.

The hazard profile of baicalin is adequately defined. Overall, baicalin is of low acute, subchronic, and developmental toxicity. No systemic toxicity is observed up to 2,000 mg/kg/day (~1,200 mg/kg/day baicalin), in mice up to 500 mg/kg/day (~300 mg/kg/day baicalin) and in dogs up to 1,000 mg/kg/day (~630 mg/kg/day baicalin). Since signs of toxicity were not observed, no toxicological endpoints of concern or PODs were identified. Therefore, a qualitative risk assessment for baicalin can be performed.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to baicalin, EPA considered exposure under the proposed exemption from the requirement of a tolerance. EPA assessed dietary exposures from baicalin in food as follows:

Dietary exposure (food and drinking water) to baicalin may occur following ingestion of foods with residues from their use in accordance with this exemption and use as an herbal supplement. However, a quantitative dietary exposure assessment was not conducted since a toxicological endpoint for risk assessment was not identified.

2. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure ( e.g., textiles (clothing and diapers), carpets, swimming pools, and hard surface disinfection on walls, floors, tables).

Baicalin may be present in pesticide and non-pesticide products that may be used in and around the home and in cosmetic products. However, a quantitative residential exposure assessment was not conducted since a toxicological endpoint for risk assessment was not identified.

3. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

Based on the lack of toxicity in the available database, EPA has not found baicalin to share a common mechanism of toxicity with any other substances, and baicalin does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance exemption, therefore, EPA has assumed that baicalin does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at https://www.epa.gov/pesticide-science-and-assessing-pesticide-risks/cumulative-assessment-risk-pesticides.

Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the Food Quality Protection Act (FQPA) Safety Factor (SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

Based on an assessment of baicalin, EPA has concluded that there are no toxicological endpoints of concern for the U.S. population, including infants and children. Because there are no threshold effects associated with baicalin, EPA conducted a qualitative assessment. As part of that assessment, the Agency did not use safety factors for assessing risk, and no additional safety factor is needed for assessing risk to infants and children.

Because no toxicological endpoints of concern were identified, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to baicalin residues.

An analytical method is not required for enforcement purposes since the Agency is not establishing a numerical tolerance for residues of baicalin in or on any food commodities. EPA is establishing a limitation on the amount of baicalin that may be used in pesticide formulations applied pre-harvest. This limitation will be enforced through the pesticide registration process under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. 136 et seq. EPA will not register any pesticide formulation for food use that exceeds 10% by weight of baicalin in the final pesticide formulation.

Therefore, an exemption from the requirement of a tolerance is established for residues of baicalin anhydrous (CAS Reg. No. 21967-41-9) and baicalin hydrate (CAS Reg. No. 206752-33-2) when used as inert ingredients (stabilizer) in pesticide formulations on growing crops pre-harvest under 40 CFR 180.920 limited to a maximum concentration of 10% of the end-use formulation.

This action establishes exemptions from the requirement of a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq. ), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the exemptions in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), do not apply.

This action directly regulates growers, food processors, food handlers, and food retailers, not States or Tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or Tribal Governments, on the relationship between the National Government and the States or Tribal Governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq. ).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, for the reasons stated in the preamble, EPA is amending 40 CFR chapter I as follows:

Section 1007(a)(2) of the Legal Services Corporation Act (Act), 42 U.S.C. 2996f(a)(2), requires LSC to establish maximum income levels for individuals eligible for legal assistance. Section 1611.3(c) of LSC's regulations establishes a maximum income level equivalent to 125% of the Federal Poverty Guidelines (Guidelines), which HHS is responsible for updating and issuing. 45 CFR 1611.3(c).

Each year, LSC updates appendix A to 45 CFR part 1611 to provide client income eligibility standards based on the most recent Guidelines. The figures for 2024, set out below, are equivalent to 125% of the Guidelines published by HHS on January 12, 2024.

In addition, LSC is publishing a chart listing income levels that are 200% of the Guidelines. This chart is for reference purposes only as an aid to recipients in assessing the financial eligibility of an applicant whose income is greater than 125% of the applicable Guidelines amount, but less than 200% of the applicable Guidelines amount (and who may be found to be financially eligible under duly adopted exceptions to the annual income ceiling in accordance with 45 CFR 1611.3, 1611.4, and 1611.5).

Except where there are minor variances due to rounding, the amount by which the guideline increases for each additional member of the household is a consistent amount.

For reasons set forth in the preamble, the Legal Services Corporation amends 45 CFR part 1611 as follows:

NASA proposed a rule in the Federal Register at 88 FR 67720 on October 2, 2023, to amend the NFS by removing NFS 1831.205-671, Solicitation provision, and NFS 1852.231-71, Determination of Compensation Reasonableness, from the NFS. NASA has determined these provisions are unnecessary as they exceed the scope requirements adequately covered in Federal Acquisition Regulation (FAR) provision 52.222-46, Evaluation of Compensation for Professional Employees (48 CFR 52.222-46). Currently, NFS requires an evaluation for all labor categories and periodic review of total compensation plans after contract award for cost reimbursement contracts (at least every 3 years) to evaluate the reasonableness of compensation for all proposed labor categories in service contracts.

NASA has made a determination to rely on FAR provision 52.222-46, agencywide templates, and instructions, to ensure consistency in the data provided to NASA and subsequent evaluations to ensure NASA continues to pay fair and reasonable wages.

As no public comments were submitted on the proposed rule, NASA is finalizing this rule with no changes.

Executive Orders (E.O.s) 12866 and 13563 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, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review by OMB under E.O. 12866, Regulatory Planning and Review. This rule is not a major rule under 5 U.S.C. 804.

NASA does not expect this rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the rule is removing the NFS unique requirements for submission of total compensation plan. Therefore, an Initial Regulatory Flexibility Analysis was not performed.

The Paperwork Reduction Act (44 U.S.C. chapter 35) does apply. With the publication of this final rule, an existing information collection currently approved under Office of Management and Budget (OMB) control number 2700-0077, Contractor and Subcontractor Compensation Plans, is no longer needed. Once the final rule is effective, NASA will discontinue this collection and rely on OMB control number 9000-0066, Certain Federal Acquisition Regulation Part 22 Labor Requirements—FAR Sections Affected: 52.222-2, 52.222-6, 52.222-11, 52.222-18, 52.222-33, 52.222-34, 52.222-46, and SF 1413 and 1444.

For the reasons stated in the preamble, NASA amends 48 CFR parts 1831 and 1852 as follows:

Pursuant to its broad statutory mandate, the Surface Transportation Board closely monitors the rail industry's service performance. See 49 U.S.C. 1321, 11145; see also 49 U.S.C. 10101, 11323, 10907. Over the last decade, railroad service challenges impacting a wide range of geographic regions and commodities have occurred with some frequency. See, e.g., U.S. Rail Serv. Issues—Performance Data Reporting, EP 724 (Sub-No. 4) (STB served Dec. 30, 2014); STB Letter to CSX Transp., Inc. Requesting Serv. Reporting (July 27, 2017); Chairman Oberman Letter to Norfolk S. Regarding Serv. Issues (Nov. 23, 2021);  1 Urgent Issues in Freight Rail Serv., EP 770 (STB served Apr. 7, 2022); Oversight Hearing Pertaining to Union Pac. R.R.'s Embargoes, EP 772 (STB served Nov. 22, 2022).

In response to service challenges in recent years, the Board has held a series of public hearings to permit interested persons to report on specific service problems, to hear from rail industry executives on plans to address rail service problems generally, and to explore additional options to improve service. At one such hearing in October 2017, several shippers observed that the Board's regulations at 49 CFR part 1146, which implement 49 U.S.C. 11123 and govern expedited relief for service emergencies, are rarely invoked, even in times of serious rail service challenges. See Pub. Listening Session Regarding CSX Transp., Inc.'s Rail Serv. Issues, EP 742, Hr'g Tr. 89:13-22; 90:1; 150:3-14; 196:11-22; 197:1-16; 199:1-9 (Oct. 17, 2017).

Based on these concerns, and to better understand the reasons for the lack of use of the Board's directed service regulations, the Board announced on March 15, 2018, that Board staff would hold informal meetings with interested persons to discuss and gather feedback on the adequacy of the Board's current regulations regarding emergency service and service inadequacies, and whether and how the current regulations should be modified to offer a more meaningful path to relief. See Press Release, STB, Board to Hold Informal Meetings on Directed Serv. Reguls. Beginning in Apr. (Mar. 15, 2018), www.stb.gov/news-communications/latest-news/archived-press-releases/ . 2 As a result, in the second quarter of 2018 Board staff met with representatives of a variety of entities representing carrier and shipper interests. A recurring concern expressed by shipper interests was the amount of time required under the existing procedures to obtain relief for service failures and the difficulty of satisfying certain informational burdens. Although carrier interests acknowledged that very few emergency service petitions had been filed in recent years, they nevertheless generally asserted that the existing procedures were sufficient, and noted that the Board's Rail Customer and Public Assistance program (RCPA) had been helpful in resolving acute service issues informally.

By decision served April 7, 2022, the Board announced that it would hold a hearing on April 26 and 27, 2022, on rail service problems impacting the network and the recovery efforts involving several Class I carriers. 3 As the hearing notice explained, the Board had informally heard from a broad range of stakeholders about inconsistent and unreliable rail service throughout the network and across commodity groups. Urgent Issues in Freight Rail Serv., EP 770, slip op. at 2. These challenges included tight car supply and unfilled car orders, delays in transportation for carload and bulk traffic, increased origin dwell time for released unit trains, missed switches, and ineffective customer assistance. Id.

On April 22, 2022, the Board issued a notice of proposed rulemaking in this docket, proposing to amend its emergency service regulations. Revisions to Reguls. for Expedited Relief for Serv. Emergencies ( NPRM ), EP 762 (STB served Apr. 22, 2022). 4 The Board explained in the NPRM that if the service issues continue, they could result in an increased need for emergency Board action to meet the needs of the public. NPRM, EP 762, slip op. at 2. Indeed, since the issuance of the NPRM, the Board has issued orders to address service emergencies. See, e.g., Foster Poultry Farms—Ex Parte Pet. for Emergency Serv. Ord., FD 36609 (STB served June 17, 2022) (issuing, just two days after the filing of the petition seeking emergency service relief, an order under 49 U.S.C. 11123 directing Union Pacific to adhere, to the greatest extent possible, to a schedule that Union Pacific itself put forward). In addition, the Board has proposed new regulations that would, if adopted, establish additional procedures to govern reciprocal switching determinations related to service inadequacy. See Notice of Proposed Rulemaking, Reciprocal Switching for Inadequate Serv., EP 711 (Sub-No. 2) (STB served Sept. 7, 2023).

Emergency service orders are designed to preserve rail service where there has been a substantial rail service issue or failure that requires immediate relief. Under 49 U.S.C. 11123(a), the Board may issue an emergency service order when it determines that there exists “an emergency situation of such magnitude as to have substantial adverse effects on shippers, or on rail service in a region of the United States, or that a rail carrier . . . cannot transport the traffic offered to it in a manner that properly serves the public.”  5 When the Board determines that such a situation exists, it may: “(1) direct the handling, routing, and movement of the traffic of a rail carrier and its distribution over its own or other railroad lines; (2) require joint or common use of railroad facilities; (3) prescribe temporary through routes; [and] (4) give directions for—(A) preference or priority in transportation; (B) embargoes; or (C) movement of traffic under permits;” or, when the service failure is caused by a cessation of service by Amtrak, direct the continuation of operations and related functions. 49 U.S.C. 11123(a). The Board may act on its own initiative or pursuant to a petition, and emergency service may be ordered summarily ( i.e., without regard to the Administrative Procedure Act, 5 U.S.C. 551-559). 49 U.S.C. 11123(b)(1). Board orders under 49 U.S.C. 11123 are subject to an initial time limit of 30 days, but they may be extended up to an additional 240 days if the Board finds that emergency conditions continue to exist. 49 U.S.C. 11123(a), (c). 6

The current regulations at 49 CFR 1146.1(a) require that a petitioner seeking relief show a substantial, measurable deterioration or other demonstrated inadequacy in rail service by the incumbent carrier over an identified period of time. Any petition for relief must demonstrate that the standard in 49 CFR 1146.1(a) is met, provide a summary of discussions the petitioner has had with the incumbent carrier regarding the service problems and the reasons why the incumbent is unlikely to restore adequate rail service within a reasonable period of time, and include a commitment from an alternative carrier to provide service that can be performed safely without degrading service to existing customers of the alternative carrier and without unreasonably interfering with the incumbent's overall ability to provide service. 49 CFR 1146.1(b). A reply to the petition must be filed by the incumbent carrier within five business days, and a rebuttal by the party requesting relief may be filed within three business days following submission of the reply. 49 CFR 1146.1(b)(2) and (3).

In the NPRM, the Board proposed to amend part 1146 by (1) modifying the procedures for parties seeking a Board order directing an incumbent carrier to take action to remedy a service emergency, (2) indicating that the Board may act on its own initiative to direct emergency service, (3) modifying the informational requirements for parties in emergency service proceedings, (4) shortening the filing deadlines in emergency service proceedings and establishing a timeframe for Board decisions, and (5) establishing an accelerated process for certain acute service emergencies. In response to the NPRM, the Board received 18 opening comments and five reply comments. 7 Below, the Board addresses the comments submitted and discusses the clarifications and modifications being adopted in this final rule. The text of the final rule is appended to this decision.

Several commenters express support for the Board's proposal. 8 For example, ARA comments that the proposal would reduce barriers and provide more certainty for both shippers and railroads, as well as enable the Board to better address emergency service situations, thus helping to prevent localized service issues from impacting the entire network. (ARA Comment 1.) NACD points to the efficiencies the proposal would bring, (NACD Comment 2), and emphasizes that such “[a]ccessible and efficient relief mechanisms are especially needed now in this unprecedented time of supply chain problems,” ( id. at 4). Shipper Groups argue that the proposed changes would clarify substantive standards and improve the emergency service relief procedures, (Shipper Grps. Comment 1-2), as well as encourage carriers to act more responsibly to avoid emergency service issues in the first place, ( id. at 8). USDA agrees that the proposal would “improve rail service in times of disruption and incentivize railroads to maintain better service overall.” (USDA Comment 1.)

AFPM, IMA, NACD, and PRFBA each note how infrequently the Board's emergency service regulations have been utilized and argue that this lack of use justifies review of the provisions. (AFPM Comment 6; IMA Comment 7; NACD Comment 2-3; PRFBA Comment 7.) According to AFPM, rather than pursuing emergency relief from the Board, refiners simply accept the temporary disruptions, often adjusting production, storage, or fleet size. (AFPM Comment 6-7; see also NACD Comment 2-3.) IMA similarly states that its member companies have not petitioned the Board for emergency service because the existing process requires information unavailable to them and does not provide a timely result. (IMA Comment 3.) Several commenters note that shippers choose not to petition the Board for emergency relief because they fear retribution from railroads. (AFPM Comment 6-7; PRFBA Comment 8 n.6; IMA Comment 8 n.6.)  9

Other commenters support the proposal but assert that the Board should take further action. The Coalition Associations, for example, express strong support for the proposal, stating that it provides “critical improvements that will enhance the utility of emergency service orders for some circumstances,” but caution that the rulemaking will not solve all, or even most, service problems. (Coalition Ass'ns Comment 1-2; see also NMA Comment 2-3; NITL & ISRI Reply 1.) TTD likewise supports the proposal but also argues that the provisions in this rulemaking will not fully address the current rail service problems, which it claims stem primarily from the railroads' staffing, equipment, and scheduling decisions. (TTD Comment 1.) WVCA states it supports the NPRM and encourages the Board to continue its rail service oversight efforts. (WVCA Comment 2, 12.)

AAR, CSXT, and NS each express their support of the Board's efforts to ensure the accessibility of service relief when necessary in times of emergency. (AAR Comment 1; CSXT Comment 2; NS Comment 2.) AAR supports “the Board's effort to properly structure expedited relief where appropriate and necessary to resolve emergency situations,” and proposes several modifications and additional clarifications. (AAR Comment 1-2.) CSXT expressly supports certain aspects of the proposed rule and expresses “serious concerns” about others. (CSXT Comment 2-3.) NS “supports review and appropriate updates based on sound policy and evidence,” but it notes that the Board has “existing tools at its disposal . . . that remain useful and effective to address service issues in an expedited manner,” and it offers “three suggestions and minor modifications” to the proposed rule. (NS Comment 2.)

Clarifying Remedial Pathways. In the NPRM, the Board proposed adding language to 49 CFR 1146.1(a) to clarify that it may direct an incumbent carrier or alternative carrier to provide service and that it can act on its own initiative as well as pursuant to a petition. NPRM, EP 762, slip op. at 5. The Board noted these changes would better align the Board's regulations with its statutory authority and provide clarity to stakeholders. Id. Several commenters express support for one or both of these clarifications, which merely codify the Board's existing statutory authority. 10

Other commenters request additional modifications and clarifications to other aspects of part 1146.1(a). Specifically, the Coalition Associations request that the Board remove the phrase “over an identified period of time,” arguing that service emergencies can arise in short order and that this language suggests a shipper must wait for some time to pass before petitioning the Board for emergency service relief. (Coalition Ass'ns Comment 2.) NGFA and Shipper Groups ask the Board to address the Board's authority to issue emergency service orders on an ex parte basis. (NGFA Comment 3; Shipper Grps. Comment 9 (citing Hasa, Inc. v. Union Pac. R.R., NOR 42165 (STB served Aug. 21, 2019)).) According to Shipper Groups, the reply and rebuttal filings permitted in 49 CFR 1146.1(b) are unnecessary when a second carrier is not involved. (Shipper Grps. Comment 9.)

The Board finds it unnecessary to remove the phrase “over an identified period of time” from 49 CFR 1146.1(a). This language does not restrict petitioners from seeking emergency service orders in quickly emerging situations because the section prescribes no minimum period that must pass prior to filing. See Expedited Relief, EP 628, slip op. at 8 n.14. In addition, as the Board has previously noted, the language of 49 CFR 1146.1(a) in its current format affords the Board the needed flexibility to address varying circumstances on a case-by-case basis. See Expedited Relief, EP 628, slip op. at 8-9.

Regarding the request from NGFA and Shipper Groups that the Board address its authority to issue emergency service orders on an ex parte basis, the Board agrees that 49 U.S.C. 11123 permits the Board to order emergency service without regard to Administrative Procedure Act requirements. See 49 U.S.C. 11123(b)(1). 11 Even though the Board is modifying its regulations to improve the processing time when emergencies occur, there may still be circumstances when the Board needs to act on an ex parte basis. Under the current proposal, the Board retains the statutory authority to order emergency service on an ex parte basis in appropriate circumstances and may waive its regulations when appropriate. 12

AAR and NS ask the Board to articulate a standard for the types of emergency situations that would be eligible for relief under 49 CFR part 1146. (AAR Comment 3; NS Comment 3.) They argue that emergency service relief should be available only in “real” or “true” emergencies. (AAR Comment 2; NS Comment 2.) According to AAR, without further guidance, the regulations could be used to “secure leverage and immediate attention to their particular service complaints.” (AAR Comment 5.) On reply, various commenters argue AAR's request is unnecessary and overly restrictive. ( See Coalition Ass'ns Reply 9; NITL & ISRI Reply 3.) The Coalition Associations note that the existing process has been in place for “nearly 25 years without the objective standards AAR deems `essential' ” and that the Board has denied emergency relief when a petitioner has improperly invoked 49 CFR 1146.1. (Coalition Ass'ns Reply 9.)  13 They argue that a case-by-case approach is superior because the Board cannot anticipate every scenario that may arise. (Coalition Ass'ns Reply 9-10; see also NITL & ISRI Reply 3; Shipper Grps. Reply 2 (“[w]hether relief is appropriate should be determined based on a full set of facts”).)

AAR also asks that the Board require petitioners seeking relief under 49 CFR part 1146 to “affirm that there are no alternative modes available or feasible.” (AAR Comment 17.) According to AAR, the Board could not find there was a “real” emergency if the petitioner could shift its traffic to truck, barge, or another mode. ( Id. ) In response, the Coalition Associations note that it is unclear whether AAR is asking the Board to require the petitioner to include a sworn statement or market dominance analysis and that the latter would be impractical in an emergency. (Coalition Ass'ns Reply 14.) The Coalition Associations also assert that the “time, cost, and uncertainty of pursuing emergency service relief will always outweigh the additional cost of a non-rail transportation alternative to avoid the emergency,” so AAR's inference that shippers would petition for an emergency service order when they have alternatives available is “unrealistic and cynical.” (Coalition Ass'ns Reply 14; see also Shipper Grps. Reply 8 (“[O]ne would expect that a shipper that had a viable, economic option to pursue would choose that option before seeking emergency relief.”).) Shipper Groups claim that carriers are attempting to increase the burden on petitioners by inserting a “mini-market dominance case” into emergency service proceedings. ( Id. )

AAR's and NS's proposal to limit the type of situations eligible for emergency relief under 49 CFR part 1146 is not necessary and would complicate the process, increase the burden on shippers, and undermine the flexibility provided by the current regulations. 14 In addition, as various commenters have observed, the substantive standard in the part 1146 regulations has been in place for nearly 25 years without this limitation, during which time the Board has denied petitions where it found the situation did not constitute an emergency. See, e.g., S.F. Bay R.R.—Mare Island Pet. for Emergency Serv. Ord. & Pet. for Declaratory Ord.—Lennar Mare Island, LLC, FD 35360, slip op. at 3 (STB served Dec. 6, 2010) (denying an emergency service petition “because the record does not show that an emergency exists”). The Board has previously emphasized that the emergency service procedures are “not meant to redress minor service disruptions,” Expedited Relief, EP 628, slip op. at 2, but rather provide temporary relief for serious ones, id. at 8.

The Board also declines to adopt AAR's suggestion to require petitioners to affirm that no alternative modes of transportation are feasible or available. Generally, it seems unlikely that a shipper would seek emergency service relief from the Board if it has easy access to other transportation options, as the Coalition Associations have observed. However, in evaluating emergency service petitions, the Board has considered and will continue to consider the transportation environment in which the emergency occurs and the impact of the inadequate rail service on the affected shippers. Roseburg Forest Prod. Co.—Alt. Rail Serv.—Cent. Or. & Pac. R.R., FD 35175, slip op. at 7-8 (STB served Mar. 4, 2009); Pioneer Indus. Ry.—Alt. Rail Serv.—Cent. Ill. R.R., FD 34917, slip op. at 9-11 (STB served Jan. 12, 2007).

NS expresses its concern that the Board might base an emergency service order on the railroad performance data collected under 49 CFR part 1250 without obtaining additional information from all parties involved. (NS Comment 3.) NS argues that, although railroad performance data might identify service trends, those trends do not necessarily amount to service emergencies under 49 U.S.C. 11123. ( Id. ) The Board appreciates the significance of ordering emergency service and the operational, safety, and financial implications it may have on carriers, and it anticipates getting more information beyond service trends in individual emergency service cases to aid the Board in appropriately resolving these matters. The procedures in the proposed regulations thus allow an opportunity for carriers to provide specific information to the Board about the situation at hand.

Lastly, AAR requests the Board either “clarify that it will not invoke [49 CFR] 1146.1 authority on its own motion if the issue has been the subject of [an] RCPA informal dispute resolution process about which the Board was aware,” or add a requirement that the Board “certify when it invokes its [49 CFR] 1146.1 authority on its own motion, that none of the information leading to such invocation came from an RCPA informal dispute resolution process.” (AAR Comment 15.) As the Board explained in the NPRM, RCPA serves as a resource for the Board's stakeholders, and a key part of RCPA's mission involves providing informal facilitation services to shippers and other parties without charge to resolve disputes with railroads. Requests for RCPA assistance, including informal facilitation services, are kept confidential and not shared with other STB offices. Accordingly, the Board does not find it necessary to add the language requested by AAR.

Modifying Petition Requirements. Currently, under 49 CFR 1146.1(b)(1)(iii), a petitioner must have a commitment from another available railroad to provide alternative service and explain how the alternative service would be provided safely without degrading service to the alternative carrier's existing customers and without unreasonably interfering with the incumbent's overall ability to provide service. As the Board discussed in the NPRM, many proponents of a rule modification have expressed frustration with the requirement to secure an alternative carrier in advance ( i.e., a commitment to be included in a petition) during a service emergency because potential alternative carriers may be reluctant to participate in emergency alternative service. NPRM, EP 762, slip op. at 5. The Board stated in the NPRM that requiring an advance commitment from an alternative carrier as a condition to filing an emergency service petition is an unnecessary burden on petitioners experiencing a service crisis that undermines the usefulness of this important statutory remedy. Id. at 5-6. Accordingly, the Board proposed removing that requirement and instead requiring petitioners to submit only a list of possible alternative carriers, based on the petitioner's understanding of other rail carriers' nearby operations. Id. at 6.

The Board also proposed requiring the incumbent carrier and alternative carriers, if any, to address in the first instance whether the specific remedy proposed by the petitioner would be unsafe or infeasible, or whether it would substantially impair the replying carrier's ability to serve its other customers adequately or fulfill its common carrier obligations. Id. Regarding the requirement that petitions include an explanation of reasons why the incumbent carrier is unlikely to restore rail service, the Board proposed to clarify that the explanation need only take the form of a “summary” to the extent that such information is available to the petitioner. Id. The Board reasoned that these changes would place the informational requirements on the parties most likely to have the information. Id.

According to NGFA, these changes are “an extremely equitable and more efficient way to ensure the Board is presented with the evidence it needs to make a decision in an efficient manner.” (NGFA Comment 4-5.) Shipper Groups, AFPM, IMA, and PRFBA each express support for how these changes place the burden to provide certain relevant information on the entity likely to have direct knowledge of it. (AFPM Comment 8; IMA Comment 10; PRFBA Comment 10; Shipper Grps. Comment 5-6.) Shipper Groups argue that the changes would “lead to the development of a better evidentiary record and more efficient and expeditious decision-making,” further the rail transportation policy goals of requiring fair and expeditious regulatory decisions when regulation is required, and provide for the expeditious handling and resolution of proceedings. (Shipper Grps. Comment 5-6 (citing 49 U.S.C. 10101(2), (15)).) AFPM, IMA, and PRFBA note that these changes would incentivize rail shippers to bring cases that may have gone unfiled in the past for lack of evidence not within the petitioner's control. (AFPM Comment 8; IMA Comment 10; PRFBA Comment 10.)

RFA projects that the Board's proposal to eliminate the requirement for an advance commitment from an alternative carrier and instead require only a list of potential alternative carriers would ease the burden on petitioners, streamline the petition process, and minimize disruptions in important customer service dynamics with carriers. (RFA Comment 1.) According to NACD, NGFA, and Shipper Groups, the advance commitment requirement has made it excessively difficult for shippers seeking relief as the regulations intended. (NACD Comment 3; NGFA Comment 4; Shipper Grps. Reply 6; see also Shipper Grps. Comment 6.) According to Shipper Groups, an alternative carrier “may be reluctant to commit publicly in advance to providing alternative service, especially if it is otherwise dependent on the incumbent carrier in some way, such as a short line that is beholden to the affected carrier for all or much of its business or otherwise subject to `paper barriers' established by the incumbent.” (Shipper Grps. Reply 6.) NITL and ISRI contend that this change will enhance the utility of the emergency service remedy. (NITL & ISRI Reply 2.)

On the other hand, AAR and CSXT oppose this change. AAR argues that deferring the question of whether an alternative carrier is available and able to provide emergency service would be impractical given the short time frames, “unfairly penalize the alternative carrier by suddenly dragging them into an emergency proceeding as to which they had no prior knowledge,” and hinder the Board's ability to “act quickly and decisively, with knowledge of all relevant facts.” (AAR Comment 7.) According to AAR, for the Board to be aware of factors affecting an alternative carrier's ability to provide service, such as restrictions on service in labor contracts or operational difficulties being experienced by the alternative carrier, the alternative carrier must be “involved on the frontend.” ( Id. at 9.) AAR claims its concerns are exacerbated by the tight timelines proposed. ( Id. )

CSXT argues that retaining the requirement for an advance commitment would promote the speed and success of the emergency service process and would ensure that any Board action is consistent with the prohibition in 49 U.S.C. 11123 of any Board action that would “cause a rail carrier to operate in violation of this part” or “impair substantially the ability of a rail carrier to serve its own customers adequately, or to fulfill its common carrier obligations.” (CSXT Comment 6 (quoting 49 U.S.C. 11123(c)(2)(A)-(B)).) CSXT further argues that requiring petitioners to obtain advance commitment from an alternative carrier is not “an obstruction” to their ability to obtain relief but rather “essential” because it “can only expedite the process by ensuring the [alternative] carrier is ready, willing, and able to act at the earliest possible point in the remedial process.” ( Id. at 7.)

AAR and CSXT both note that the Board—when it adopted 49 CFR 1146.1—considered and rejected the position the Board took in the NPRM. (AAR Comment 8 (quoting Expedited Relief, EP 628, slip op. at 11); CSXT Comment 7.) AAR argues that nothing has changed since then that would make an alternative carrier's advance commitment less essential, (AAR Comment 8), and CSXT asserts that “the Board must offer a reasoned decision supported by substantial evidence for making any change to [its] conclusion.” (CSXT Comment 7-8 (citing Jicarilla Apache Nation v. Dep't of Interior, 613 F.3d 1112, 1120 (D.C. Cir. 2010)).)

In response to these concerns, the Coalition Associations suggest the Board require petitioners to serve their petitions on the identified alternative carriers and to mandate that those carriers participate in the process. (Coalition Ass'ns Reply 6, see also NGFA Comment 5-6 (suggesting the Board mandate that identified alternative carriers reply to a petition).) NGFA urges the Board to “err on the side [of] collecting as much relevant information as possible, as quickly as possible, from the incumbent and an identified alternative carrier.” (NGFA Comment 6.) NITL and ISRI also oppose the carriers' proposal to retain the advance commitment requirement, arguing that elimination of this requirement would increase the usefulness of the emergency service regulations. (NITL & ISRI Reply 3.)

The Board does not find AAR's and CSXT's concerns persuasive and finds it in the public interest to eliminate the advance commitment requirement, as was proposed in the NPRM. Requiring shippers to obtain an advance commitment from an alternative carrier has unduly hindered the objectives of the emergency service process for the reasons stated in the NPRM, slip op. at 5-6, and by various commenters, see supra at 9-10, and removing this obstacle will help the process work more effectively. As the Board acknowledged in the NPRM, and as AAR and CSXT point out, the Board took a different position in the 1998 decision, stating that the absence of an advance commitment could create safety concerns, impair service to the alternative carrier's customers, or hurt the alternative carrier's finances. NPRM, slip op. at 5 (citing Expedited Relief for Serv. Inadequacies, EP 628, slip op. at 11). However, as the Board explained in the NPRM, feedback from rail users and the agency's own observations have led the Board to conclude that the disadvantages of the advance commitment requirement outweigh any potential advantages, and that the concerns expressed in the 1998 decision can be adequately addressed when considering individual requests. See id. Moreover, the inability of shippers to obtain such advance commitments from alternative carriers appears to have been a key driver in shippers' failure to use the regulatory process at all. Id. In promulgating the original regulations in 1998, the Board did not anticipate that the alternative carrier commitment requirement would lead to that result, and AAR and CSXT cite no precedent requiring the Board to ignore its experience under the regulations. With regard to the NGFA's suggestion, the Board will require an identified alternative carrier to reply to a petition. Though the Board noted in the NPRM that it could take appropriate action to request more information from an alternative carrier, it has determined that—for the Board to best meet its information needs and carry out its statutory obligations in a more efficient manner—the Board will require that an alternative carrier address whether the specific remedy would be unsafe or infeasible, or would substantially impair the carrier's ability to serve its other customers adequately or fulfill its common carrier obligations.

Numerous commenters support the Board's proposal to require incumbent carriers to first address whether the proposed remedy would be unsafe or infeasible or whether it would substantially impair the replying carrier's ability to adequately serve its other customers or fulfill its common carrier obligations. 15 AFPM, IMA, and PRFBA assert that such a procedural shift makes sense in proceedings where the “use of the discovery process [would be] too slow to allow the Board to act expediently.” (AFPM Comment 9; IMA Comment 10; PRFBA Comment 10.) NACD also supports this proposed change, calling it a “common sense reform,” (NACD Comment 3), and CSXT agrees that it is appropriate to ask the rail carrier rather than the shipper to address the safety and feasibility of the requested service, (CSXT Comment 3). BLET supports the Board's proposal to allow an alternative carrier to reply to the petition, arguing that its employees and members could provide valuable insight into how operations are happening in the field. (BLET Comment 4.)

The Coalition Associations suggest the Board consider requiring railroads to provide certain minimum information to validate their claims that a remedy is unsafe or infeasible, or that it will interfere with their ability to serve their other customers. (Coalition Ass'ns Comment 7.) Similarly, Shipper Groups ask the Board to require carriers to make a “specific and documented showing,” rather than “conclusory assertions,” of substantial impairment in order to defeat a request for emergency service relief. (Shipper Grps. Comment 7.) According to Shipper Groups, carriers will seek to preserve service that is more profitable or that limits liquidated damages or other contractual exposure. ( Id. ) The Coalition Associations also ask the Board to clarify that a petition would not be defeated automatically if the proposed emergency service would affect another shipper. (Coalition Ass'ns Comment 8.)

AFPM, IMA, and PRFBA argue the Board should shift the burden of proof to the railroads if a petitioner can demonstrate a prima facie case of “a substantial, measurable service deterioration or other demonstrated inadequacy over an identified period of time by the incumbent carrier.” (AFPM Comment 9; IMA Comment 10; PRFBA Comment 10.) They further ask the Board to establish a defined standard for that prima facie showing of service deterioration, which could be based on, for example, the percentage of missed switches for first mile/last mile, trip plan compliance data, or plant/facility shutdown/slowdown in the past, present, or future. (AFPM Comment 9-10; IMA Comment 10-11; PRFBA Comment 11.) AFPM, IMA, and PRFBA also suggest that in cases where the incumbent railroad's reply fails to adequately rebut the petitioner's prima facie case, the Board should issue its order five days after the reply, effectively eliminating the rebuttal period and expediting the case by two days. (AFPM Comment 11; IMA Comment 13; PRFBA Comment 13.) AAR opposes this request, arguing that the Board's authority under 49 U.S.C. 11123 is “limited to emergency situations, not generalized service complaints,” and that service metrics, “whether based on first-mile/last-mile data or trip plan compliance, are ill-suited to the identification of emergencies.” (AAR Reply 4-5.) AAR further argues that proponents of a Board order are required to make their case in support of the order, and that it would be unfair to further shorten a carrier's response time while also shifting the burden to the carrier. ( Id. at 5.)

Since emergencies can take various forms, flexibility is critical in determining whether a particular situation constitutes an emergency requiring expeditious Board action. The Board will not attempt to define the required minimum information appropriate for every case, nor will it establish a requirement for a carrier to make “a specific and documented showing” of substantial impairment in its ability to serve its other customers to defeat a request for an emergency service order. The Board seeks to gain a quick and accurate understanding of the circumstances underlying requests for relief so it can act to serve the public when necessary, not bog proceedings down with technical requirements that might undermine the purpose of these emergency proceedings. To be sure, especially given the expedited timelines, the Board expects that parties will support their claims with available evidence. The Board will not accept bald assertions regarding feasibility or safety as evidence of such, but circumstances will unfold differently from case to case, and the Board must maintain flexibility so it can evaluate all aspects of a case and act appropriately. 16 Additionally, emergencies often arise from unexpected or unanticipated circumstances, and the Board must have the flexibility to respond to those circumstances promptly.

The Board also clarifies that petitions, regardless of whether they seek emergency service from incumbent carrier or an alternative, will not automatically be defeated simply because the proposed emergency service order would affect another party. Rather, the concern lies with whether a proposal would “substantially impair” a carrier's ability to serve its other customers or fulfill its common carrier obligations, which is why the Board is asking for replies from carriers to address this matter. Pursuant to 49 U.S.C. 1146.1(a), the Board will then consider this information and the effects on other shippers of ordering emergency service as part of its analysis when determining whether emergency service is suitable under the circumstances and whether to order relief.

In addition, the Board declines to shift the burden of proof onto carriers by requiring a petitioner only to make a defined prima facie showing of a substantial and measurable service deterioration or another demonstrated service inadequacy, as requested by certain shipper interests. As AAR notes, this would shift the burden from petitioners to carriers while also giving carriers less time to respond. While the regulations adopted here seek to remove unnecessary burdens on petitioners, such as obtaining the advance commitment from alternative carriers, petitioners must still bear the burden of establishing the need for such relief.

CSXT and NS ask the Board to require petitioners seeking relief under 49 CFR 1146.1 to describe the efforts taken to resolve the issue through other means, as the Board is proposing for the new, accelerated process under 49 CFR 1146.2. (CSXT Comment 11; NS Comment 12.) According to CSXT, “it would be appropriate to likewise encourage good faith efforts at informal dispute resolution prior to seeking the extraordinary relief of an emergency service order.” (CSXT Comment 11.) NS notes that the Board's reasoning for including this requirement in 49 CFR 1146.2, which it states appears related to the timeline of the accelerated process, seems to apply equally to the 49 CFR 1146.1 process, which the Board also proposes to shorten. (NS Comment 12.)

The Board agrees that it is appropriate to require petitioners seeking relief under 49 CFR 1146.1 to describe efforts taken to resolve issues prior to the filing of the petition. The Board prefers informal resolution of disputes whenever possible, and requiring petitioners to describe efforts taken to arrive at solutions prior to emergency service will encourage parties to make such efforts in good faith rather than seeking an order from the Board as a matter of first resort. Moreover, many petitions already include this information to some degree, given that the current regulations require petitions to include a “summary of the petitioner's discussions with the incumbent carrier of the service problems,” so mandating that petitioners describe their efforts at resolution in 49 CFR 1146.1 would not significantly increase their burden. Finally, requiring this information in 49 CFR 1146.1 petitions would better align that process with the 49 CFR 1146.2 process and help ensure that the Board receives all information necessary to understand the underlying emergency and overall circumstances. 49 CFR 1146.1(b)(ii) will be amended to adopt this requirement.

Shipper Groups argue that a carrier should face additional consequences, such as penalties or damages, when it has “deprived itself of the ability to meet its commitments and obligations” due to underinvestment in employees and other resources, particularly when it cannot provide emergency service due to this underinvestment. (Shipper Grps. Comment 8.) According to Shipper Groups, penalties would incentivize carriers to act more proactively to maintain their service commitments and reduce the need for emergency service orders altogether. ( Id. ) NGFA agrees, adding that the Board should more aggressively penalize carriers that do not comply with emergency service orders or are unable to provide emergency service relief due to business or operational decisions. (NFGA Reply 3-4.) NGFA further contends that the Board should interpret the phrase “each violation” more broadly, for example, on a per-car basis instead of a per-train basis. ( Id. at 4.) AAR, in contrast, maintains that a punitive approach is not authorized by 49 U.S.C. 11123, which contemplates alternative carriers compensating incumbent carriers for the use of incumbents' equipment and facilities. (AAR Reply 2-3 (quoting Pyco Indus., Inc.—Alt. Rail Serv.—S. Plains Switching, Ltd. Co., FD 34889 et al, slip op. at 4-5 (STB served Jan. 11, 2008)).)

The Board will not adopt these changes suggested by Shipper Groups and NGFA. Section 11123, from which the Board derives its emergency authority, contains no language or provision authorizing penalties or damages. Furthermore, the Board rejected similar arguments when adopting the existing regulations, noting that emergency service relief “is to be used for restorative or alleviative purposes only, and not as a punitive or preventive measure.” Expedited Relief, EP 628, slip op. at 7. 17

Finally, APFM, IMA, and PRFBA want the Board to create a “reasonable railroad standard” requiring “the incumbent railroad to cooperate in a reasonable manner with the petitioner and the alternative carrier, while the [emergency service] order is in effect.” (AFPM Comment 10; IMA Comment 11-12; PRFBA Comment 11-12.) The Board finds that implementing such a “reasonable railroad” standard is not necessary because acting reasonably, in good faith and in compliance with Board orders, is already required. See 49 U.S.C. 10702. Any allegation of unreasonableness, bad faith or non-compliance can and will be dealt with on a case-by-case basis.

Modifying the Regulatory Timeframe. In response to stakeholders' previously-expressed concerns about the overall length of the current 49 CFR 1146.1 process, as well as the lack of a date certain by which a Board decision can be expected, the Board proposed in the NPRM to shorten the filing deadlines for replies and rebuttals set forth in 49 CFR 1146.1 and to establish a target timeframe for a Board decision. NPRM, EP 762, slip op. at 7. The Board explained that by shortening the timeframe and indicating when the parties can expect a decision by the Board, the proposed amendments would further streamline the process for all parties involved in an emergency service proceeding. Id.

Many commenters support this aspect of the Board's proposal. 18 AFPM, IMA, and PRFBA assert that shortening the procedural timeline would expedite the proceeding where time is clearly of the essence. (AFPM Comment 10-11; IMA Comment 13; PRFBA Comment 13.) NGFA asserts that a short timeline is imperative to avoid severe damage to a petitioner's business and customers since shippers will have exhausted all commercial remedies before seeking Board intervention. (NGFA Comment 5.) According to Shipper Groups, the Board's proposal to shorten the filing deadlines and establish a target timeframe for a Board decision is reasonable and appropriate. (Shipper Grps. Comment 8.)

Several commenters ask the Board to shorten the 49 CFR 1146.1 timeline further still. According to RFA, “the modified timeline is too lengthy to efficiently address emergencies in a timely manner.” (RFA Comment 2.) RFA explains that because ethanol facilities can typically store less than one week's production on-site, shortening the process by a few days would not fully address emergency situations at these facilities. ( Id. ) ARA presents a similar argument, noting that timely delivery of products, such as fertilizer, is critical for agricultural retailers as crop production is weather-dependent and seasonal. (ARA Comment 1.)  19

AAR opposes shortening the timeline under 49 CFR 1146.1, arguing that “[r]educing the time available for the parties to make an adequate record is not the solution to uncertainty over how quickly relief will be ordered,” and suggests that modifying the proposed rule to provide firm decision deadlines may help alleviate this concern. (AAR Comment 13; see also CSXT Comment 12 (asking the Board to provide firm decision deadlines for 49 CFR 1146.1 and 1146.2).) AAR notes that the Board previously rejected shorter timelines and argues that the concerns expressed in that decision remain valid today. (AAR Comment 12 (quoting Expedited Relief, EP 628, slip op. at 16 (“[w]e do not believe that a shorter time frame is feasible, given the nature of the relief sought, the need for an adequately developed record regarding the factual predicate for such action, and the ability of the parties to implement the proposed arrangement safely and without harm to either railroad or their other shippers.”).) According to AAR, shortening the timeline is even less feasible under the current proposal because the Board is also eliminating the requirement that petitioners obtain an advance commitment from an alternative carrier. ( Id. ) AAR asserts petitioners can consider the total timeline when deciding when to file a petition. ( Id. at 13.) In addition, AAR urges the Board to reject the requests to further shorten the proposal's timelines. (AAR Reply 6.) AAR claims the proposal's timelines are “already so short as to strain feasibility” and asserts shippers can time the filing of their petitions “to ensure relief can be provided in the correct amount of time.” ( Id. )

On reply, Shipper Groups assert that AAR's proposals are unnecessary or at least speculative at this time, and they state that a firm decision deadline might prevent the Board from taking the time that is needed in complex situations. (Shipper Grps. Reply 7.) The Coalition Associations state they are amenable to forgoing the shortening of the timelines in 49 CFR 1146.1 since the Board has proposed an accelerated process in 49 CFR 1146.2. (Coalition Ass'ns Reply 6-7.)

The Board is not persuaded by AAR's arguments for retaining the existing timeline in 49 CFR 1146.1. As explained in the NPRM, the Board agrees with stakeholders that have expressed concern that the process in 1146.1 is too lengthy in the context of a service emergency. NPRM, EP 762, slip op. at 7. Although the Board rejected a shorter timeframe in 1998, its subsequent experience with 49 CFR 1146.1 has convinced the Board that a shorter time frame would in fact be feasible, contrary to what the Board anticipated when it adopted these regulations. See Foster Farms—Ex Parte Pet. for Emergency Serv. Ord., FD 36609 (STB served June 17, 2022).

Because the final rule includes an accelerated process for acute service emergencies, the Board does not find it necessary to further shorten the timelines in 49 CFR 1146.1 beyond the periods initially proposed in the NPRM. The Board will also refrain from setting a firm decision deadline in the regulations. The Board intends to issue decisions within five days of the rebuttal deadline, as proposed in the NPRM, but setting a firm deadline for this part of the regulations would serve only to complicate the decision-making process by constraining the Board (or requiring additional procedural decisions) in situations where a specific deadline might prove to be impracticable. The Board again emphasizes that flexibility is vital in conducting these proceedings.

Establishing an Accelerated Process to Handle Acute Service Emergencies. In an effort to more efficiently address the most urgent service emergencies in a more expeditious manner, the Board proposed in the NPRM to establish a new, accelerated process at new 49 CFR 1146.2 for certain acute service emergencies presenting potential imminent harm and threatening potentially severe adverse consequences to the petitioner, its customers, or the public. NPRM, EP 762, slip op. at 7. Under the new process proposed by the Board, a petitioner seeking accelerated relief must indicate that it is seeking such relief pursuant to that process, include a description of specific and particularized actions that can be performed by the incumbent or an alternative carrier and ordered by the Board, 20 and demonstrate that the described emergency presents an imminent significant harm and threatens potentially severe adverse consequences to the petitioner, its customers, or the public. Id. To satisfy this standard, the Board proposed that the petitioner must demonstrate the alleged harm will occur before any relief could be ordered under 49 CFR 1146.1 and that any relief ordered by the Board pursuant to 49 CFR 1146.1 would be rendered ineffective. NPRM, EP 762, slip op. at 7. The Board noted that such severe adverse circumstances would exist when there is a clear and present threat to public health, safety, or food security, or a high probability of business closures or immediate and extended plant shutdowns. Id. Additionally, the Board proposed that the petition must include a verified description of any efforts taken to resolve the issue through other means, such as consultation with RCPA or direct discussions with the incumbent railroad. Id. at 8. The Board proposed to limit the length of petitions to three substantive pages (not including cover page, verifications, or certificate of service), noting that a petitioner could present further evidence in support of its petition during a telephonic or virtual hearing. Id.

Under the Board's proposal, a petition filed under the proposed 49 CFR 1146.2 would be assigned to a designated Board Member for initial resolution. NPRM, EP 762, slip op. at 8. The Board proposed that the Board Member designation would rotate on a quarterly basis, and if the designated Board Member is unavailable, the next Board Member in the rotation would be assigned to evaluate the petition. Id. The designated Board Member would notify the parties regarding a telephonic or virtual hearing to be held between 24 and 48 hours after receipt of the petition or as soon thereafter as logistically possible. Id. Given the accelerated process, the Board's proposed schedule did not include a period for written replies—oral replies to the petition would occur during the hearing—however, the designated Board Member could order the carriers to submit, or the carriers could voluntarily submit, an alternative plan to address the emergency within 24 hours of the hearing. Id. The Board's proposal contemplated an initial decision on the merits of the petition by the designated Board Member within two business days after completion of the hearing. Id. That initial decision could be appealed to the entire Board pursuant to 49 CFR 1115.2. Id.

The Board proposed that any relief granted under 49 CFR 1146.2 clearly avoid any substantial impairment of the ability of a rail carrier to serve its own customers adequately or to fulfill its common carrier obligations. NPRM, EP 762, slip op. at 8-9. Given the accelerated nature of this process, the Board also proposed a 20-day limit on relief, which it stated should provide petitioners with sufficient time to pursue relief up to 240 days, if necessary, under 49 CFR 1146.1. Id. at 9. Under the Board's proposal, if a petition for relief under 49 CFR 1146.2 is denied for failure to satisfy the standard for relief, the petitioner may appeal that ruling to the entire Board, or the petitioner may file a new petition pursuant to 49 CFR 1146.1 regarding the same service emergency. NPRM, EP 762, slip op. at 8.

According to the Coalition Associations, the creation of this new accelerated process is the “single most impactful proposal” in the NPRM. (Coalition Ass'ns Comment 2.) NACD also supports the creation of this new accelerated process, noting that emergencies require immediate action and accelerating the timeliness would facilitate relief in emergency situations. (NACD Comment 3.) SDDC states that it “sees the potential for a significant improvement from adding [49 CFR] 1146.2,” (SDDC Comment 1), and NITL and ISRI state that the creation of this new process is a critical change that will enhance the usefulness of the Board's emergency service regulations, (NITL & ISRI Reply 1-2). AFPM, IMA, NGFA, RFA, and USDA also indicated their support of the new proposed process at 49 CFR 1146.2. (AFPM Comment 12; IMA Comment 14; NGFA Comment 6; RFA Comment 2; USDA Comment 1.)

AAR, CSXT, and NS urge the Board to discard its proposal for a new accelerated process. According to AAR, the new accelerated process is “fundamentally unfair and impracticable,” and the “extreme limitations on development of a record and meaningful opportunity to be heard present substantial questions of procedural fairness and due process.” (AAR Comment 13.) AAR notes that neither the incumbent nor any alternative carrier would have the opportunity to reply in writing to a petition and claims “the incumbent (and any alternative carrier) will have virtually no time to investigate the few facts provided” in the three-page petition. ( Id. ) AAR doubts the timeline would allow the Board to “make a responsible decision” and asserts its concerns are exacerbated by the fact that petitioners would not be required to obtain an advance commitment from an alternative carrier. (AAR Comment 13-14; see also CSXT Comment 10 (“The proposed acceleration to the [49 CFR] 1146.1 process is as fast as the Board could reasonably act in a manner that ensures that the parties and the Board have sufficient time to both gather and analyze the available information to make a wise decision with such an extraordinary power.”) (emphasis omitted); NS Comment 4 (“[T]he proposed accelerated process will not allow for the development of a factual record upon which the Board can act.”).)

CSXT argues it is unnecessary to create a second process when the Board is shortening the existing process. (CSXT Comment 9.) According to CSXT, because the Board's authority under 49 U.S.C. 11123 is limited to acute service emergencies, there is “no authority for an even more extraordinary remedy for a different category of emergency—emergent is emergent.” (CSXT Comment 9.) CSXT also asserts the Board has not explained why “acute service emergencies” cannot be handled under 49 CFR 1146.1 or through the Board's injunctive authority at 49 U.S.C. 1321(b)(4). (CSXT Comment 9.)

NS likewise cites to the Board's injunctive authority as a reason for discarding the proposed new process, noting that the Board has in the past granted an injunction where emergency service was sought. (NS Comment 5 n.4 (citing Cent. Valley Ag Grinding, Inc. v. Modesto & Empire Traction Co., NOR 42159, slip op. at 7 (STB served June 12, 2018).) NS further argues that the Board previously declined to shorten the timeline of 49 CFR 1146.1 and that there is no evidence a faster process is “needed or superior to the current expedited timeline in [49 CFR] 1146.1.” (NS Comment 5.) NS asserts that if the Board is concerned about the timeline of the 49 CFR 1146.1 process, the Board can eliminate the rebuttal period. (NS Comment 5 n.4.)

On reply, the Coalition Associations urge the Board to reject the carriers' requests to abandon the accelerated process and suggest several modifications to address the concerns raised. (Coalition Ass'ns Reply 8.) First, the Coalition Associations suggest that rather than discarding the new accelerated process, the Board could discard its proposal to shorten the existing 49 CFR 1146.1 process. (Coalition Ass'ns Reply 8.) According to the Coalition Associations, the accelerated process would sufficiently address shippers' concerns that the 49 CFR 1146.1 process is “too slow and cumbersome for the most time-sensitive emergencies.” (Coalition Ass'ns Reply 8.) The Coalition Associations also state they are open to limiting the relief available under 49 CFR 1146.2 to incumbent-based relief only. (Coalition Ass'ns Reply 8-9.)

NITL and ISRI also oppose the carriers' proposal to jettison the accelerated process, noting that it offers one of the “greatest opportunit[ies] to improve the usefulness of the [Board's regulations].” (NITL & ISRI Reply 3.) Shipper Groups argue that “[t]here is no basis to conclude at this stage that any railroad will be deprived of a fair hearing without the opportunity to make a written presentation.” (Shipper Grps. Reply 8.)

The Board finds that an accelerated process is warranted to address acute service emergencies more efficiently. As noted in the NPRM, the most serious issue identified by stakeholders was the timeliness of regulatory action in situations involving acute service emergencies. In certain instances, the process in 49 CFR 1146.1 would simply take too long (even under the shortened 1146.1 timeline adopted in this final rule) for a shipper facing an acute emergency to utilize it effectively, even though the shipper might otherwise qualify for emergency service relief. The accelerated process addresses this timeliness issue by streamlining the petition process in certain emergency situations to allow the Board to act quickly while providing it with enough time to make a responsible decision while maintaining adequate due process for carriers. 21

Although the process will be short, carriers will have a meaningful opportunity to reply to the petition, and the provision of an oral response at a hearing is consistent with 49 U.S.C. 11123, which intended summary procedures in these emergency situations. 22 Additionally, the regulations do not preclude the provision of written comments by the rail carriers; it simply does not provide specific extra time for them in the necessarily short schedule. Nor will the filing of a petition be the first opportunity for carriers to investigate the circumstances surrounding the particular service issue. Prior to filing at the Board, a petitioner would have to engage in the process mandated by 49 CFR 1146.2(a), which requires that parties seek, in good faith, to resolve any service issues through an informal dispute resolution process first. Finally, the accelerated process limits relief to no more than 20 days, and parties may petition the Board to reconsider its decision. 23 The Board understands the gravity of issuing emergency service orders and finds that this new process will accommodate the procedural rights of all parties while affording the Board the ability to swiftly act on behalf of the public interest in necessary situations, as Congress intended. 24

Concerning the standard for relief proposed by the Board, the Coalition Associations state that the proposal “reasonably restricts this process to circumstances that threaten severe consequences to the shipper, its customers, or the public that cannot be avoided using the [49 CFR] 1146.1 procedures.” (Coalition Ass'ns Comment 3.) However, several commenters ask the Board to define “acute service emergency” more clearly. AFPM, IMA, and PRFBA urge that the Board permit any plant shutdown to qualify for relief under this new process, arguing that any shutdown is acute. (AFPM Comment 12; IMA Comment 14; PRFBA Comment 14.) AFPM suggests removing the requirement that plant shutdowns be “extended,” (AFPM Comment 12), and IMA and PRFBA suggest removing the requirement that plant shutdowns be “immediate and extended,” (IMA Comment 14; PRFBA Comment 14). NMA expresses concern that entities may interpret “acute service emergency” differently and notes that if there are multiple emergencies at the same time, the Board may need to weigh one emergency over the other. (NMA Comment 3.)

AAR opposes allowing any plant slowdown or shutdown to qualify under 49 CFR 1146.2, arguing that not all plant slowdowns, shutdowns, or even closures are genuine emergencies that would qualify for emergency service relief. 25 (AAR Reply 5-6.) According to AAR, “shutdowns and closures can often be remedied with monetary damages.” (AAR Comment 6.) AAR and NS both argue the accelerated process, if adopted, should be more narrowly tailored, available only if the petitioner will experience immediate and irreparable harm, as is required for a preliminary injunction or temporary restraining order. (AAR Comment 6; NS Comment 6-7.) NS notes emergency service orders are similar to preliminary injunctions in that both are extraordinary remedies, (NS Comment 7), and AAR argues that much like temporary restraining orders, petitions brought under 49 CFR 1146.2 would be decided pursuant to a short procedural schedule with “minimal opportunity for response from the involved railroad[s],” (AAR Comment 6 (brackets in original)).

Shipper Groups and the Coalition Associations both take issue with AAR's suggestion that not all plant shutdowns meet the statutory requirements for an emergency under 49 U.S.C. 11123. (Shipper Grps. Reply 2; Coalition Ass'ns Reply 10.) According to Shipper Groups, the basis for relief should be decided in individual adjudications, not based on hypothetical facts at the rulemaking stage. (Shipper Grps. Reply 2.)

Shipper Groups and the Coalition Associations also both oppose applying the standard for injunctions at 49 U.S.C. 1321(b)(4) to emergency service petitions. (Shipper Grps. Reply 4; Coalition Ass'ns Reply 12.) The Coalition Associations argue that the irreparable harm standard considers whether the petitioner could be made whole, whereas the Board's emergency service authority is also exercised for the public interest. (Coalition Ass'ns Reply 12-13). According to Coalition Associations, “[i]t is entirely conceivable that the petitioner could be made whole with monetary damages, but the broader public interest could not.” ( Id. at 13.) The Coalition Associations further argue that monetary damages are not a realistic remedy for plant shutdowns as most contracts and tariffs allow only for direct damages ( i.e., primarily the additional cost of alternative transportation) but not consequential damages. 26 ( Id. at 10.) According to Shipper Groups, the fact that shippers need to seek emergency relief in the first place is evidence that the “other types of proceedings” AAR references are insufficient and fail to deter carriers from curtailing service. (Shipper Grps. Reply 2 (quoting AAR Comment 5).) According to Shipper Groups, the economic losses shippers face from rail service failures can be massive, and the carriers' proposal would “categorically preclude[]” shippers and their customers from receiving emergency service. (Shipper Grps. Reply 3-4.)

The Board will revise the portion of 49 CFR 1146.2(a) that states “immediate and extended plant shutdowns” to simply state “immediate plant shutdowns.” Striking “extended” as a qualifier allows the Board to consider how the impact of a shutdown will vary by industry. In some industries, for example, imminent significant harm and severe adverse consequences could occur immediately upon plant shutdown. This change will allow the Board to better assess petitions for emergency relief based on the circumstances of the underlying emergency. 27

The irreparable harm standard applicable to injunctions under section 49 U.S.C. 1321(b)(4) will not be imported by the Board to its consideration of emergency petitions under 49 U.S.C. 11123. Congress has kept separate the emergency service and preliminary injunction powers of the Board. The Board sees no reason to conflate the general preliminary injunction standard in 49 U.S.C. 1321(b)(4) with the more specific emergency issues arising under 49 U.S.C. 11123, which provides an independent standard for when it applies, see 49 U.S.C. 11123(a).

NGFA and AAR ask the Board to clarify the phrase “food security.” More specifically, NGFA asks the Board to clarify that the new accelerated process could be used in situations presenting a “clear and present threat to the health of livestock.” (NGFA Comment 6.) NGFA states that railroads' failures to deliver corn, which its members process into feed for livestock, can be damaging and potentially catastrophic to the health of livestock populations. ( Id. ) AAR questions what the phrase would include ( e.g., does it cover a shortage of pet food, livestock feed, potato chips, or soda) and asserts it is not clear “what a threat to `food security' would entail in the railroad context.” (AAR Comment 7.) The Coalition Associations argue that “food security” need not be defined more clearly as it is “common sense” and note that food security is “traced back to the ultimate food sources, not the manufactured products in the AAR's hypotheticals.” (Coalition Ass'ns Reply 11.)

Further clarification of “food security” is unnecessary at this time. While the Board agrees with the Coalition Associations that shortages of the ultimate food sources are more likely to constitute an emergency than shortages of manufactured products, the Board cannot anticipate all circumstances of potential food security-related emergencies. Instead, a case-by-case application that affords the Board flexibility in addressing situations based on the specific conditions of each case will best allow the Board to apply these regulations appropriately.

SDDC requests the Board add “a threat to national defense” to the standard for relief under 49 CFR 1146.2. (SDDC Comment 1.) SDDC states that “national defense is one very important aspect of the public interest, and the timely deployment of military units to a port or timely movement of critical defense materiel are important to that end.” ( Id. ) AAR states it does not object to this change if the accelerated process is adopted. (AAR Reply 7.) The Board of course agrees that national defense is critical to the public interest and will therefore include language in 49 CFR 1146.2 to reflect that the accelerated process is an appropriate mechanism for addressing threats to national defense related to rail service.

Regarding the proposed petition requirements under 49 CFR 1146.2, AAR requests that the Board require a petitioner to include in its petition that it has “previously notified the incumbent railroad of the emergency and its intent to file.” (AAR Comment 17.) According to AAR, while the proposal requires a good faith effort to resolve the dispute before filing, it does not require the petitioner to notify the incumbent carrier of the emergency. ( Id. ) AAR asserts that this modification would ensure the incumbent carrier has sufficient notice to prepare a response to a petition and that the Board has the most complete information. ( Id. ) Shipper Groups argue this concern is unfounded. (Shipper Grps. Reply 8.) Additionally, Shipper Groups express concern with the Board's proposal to limit petitions under 49 CFR 1146.2 to three substantive pages. According to Shipper Groups, this page limit may lead to skeletal filings that could cause uncertainty, confusion, and longer hearings. (Shipper Grps. Comment 10.) Shipper Groups suggest that a word count limitation would be less subject to manipulation. ( Id. )

The Board agrees with Shipper Groups regarding AAR's concerns here. It is redundant to require petitions to state that petitioners have notified incumbent carriers of emergencies and their intent to file for emergency service given that shippers are required in good faith to seek informal resolution of the matter before filing under 49 CFR 1146.2 and to describe those efforts in their petitions. The Board expects that shippers facing such an emergency would make the impact of the service issue on their business clear to the railroad during informal discussions.

The Board declines to adopt Shipper Groups' suggestion that it address concerns about the page limitation by using a word limit instead. It is not clear from Shipper Groups' argument why such a change would be meaningful, and doing so would depart from standard Board practice. See, e.g., 49 CFR 1115.2(d), 1115.3(d), 1115.5(c). Moreover, 49 CFR 1104.2 sets forth requirements such as page size, font size, and line spacing, which will help prevent parties from manipulating the limitations. The Board will, however, expand the petition page limit from three substantive pages to five substantive pages to accommodate the requirements that petitions include a particularized description of the commodities and volumes subject to the requested relief and the timing necessary for such relief, including why relief under 1146.1 would be ineffective; as well as a particularized description of how the measurable deterioration or other demonstrated inadequacy, absent the requested relief, presents imminent significant harm and threatens potentially severe consequences as specified in 1146.2(a).

AAR expresses concern about the Board's proposal to rotate, on a quarterly basis, the Board Member assigned to evaluate petitions for emergency relief and issue the initial decision. AAR projects that a single quarter may see a large number of complaints, which could tax a single Board Member; AAR goes so far as to speculate that single-Member decision making could even lead to “judge shopping” by shippers. (AAR Comment 15-16.) AAR suggests that the Board “shorten the rotation, not make it public, and allow for at least two Members” to resolve cases or allow Board staff to hold a conference before making a recommendation to the full Board, as is done for motions to compel. ( Id. at 16.) The Coalition Associations do not object to AAR's proposals intended to mitigate the burdens that could fall unduly upon a single Board Member; however, they object to AAR's statement that petitioners would “judge shop.” (Coalition Ass'ns Reply 14.) According to the Coalition Associations, “any circumstance in which a shipper can afford to wait until the following calendar quarter to have its petition decided by a different Board Member would not qualify for the [49 CFR] 1146.2 process.” (Coalition Ass'ns Reply 14-15.) Shipper Groups argue that AAR's concerns may never materialize, and if they do, the Board can address them at that time. (Shipper Grps. Reply 7.)  28

After considering the concerns raised in the comments, the Board finds that the objectives of the new 49 CFR 1146.2 process would be best achieved through a full Board decision rather than through delegation to a single Board Member. The Board's emergency service powers, when exercised, undoubtedly have a significant impact on various parties and the interstate rail network as a whole. Consideration by the full Board better lends itself to the exercise of that power, even in the accelerated process. Moreover, consideration by the full Board in the first instance (rather than upon appeal of a single-Member decision) will allow the process to be more efficient while still protecting the right to appeal by petitioning the Board for reconsideration. Accordingly, the regulations adopted in this final rule provide for a full Board decision on the merits of petitions seeking relief under 49 CFR 1146.2. To accommodate this procedural change but still allow proceedings to move quickly, instead of a hearing before the designated single Board Member as was proposed in the NPRM, Board staff will hold a staff-led conference with parties, as suggested by AAR. 29 (AAR Comment 16.) Board Members may attend the staff-led conference. 30 A transcript or recording of the staff-led conference will be made available to all Board Members before they make their decision and will be posted in the docket following any necessary redactions for confidentiality. In addition, given the change from a single Member to full Board decision, the Board will endeavor to issue a decision on the merits within three business days, rather than two as was proposed in the NPRM. This process is intended to be quick and flexible while also respecting the regulatory powers involved in the emergency service process. 31 Moreover, including a staff-led conference might encourage discussion and resolution among parties to a proceeding.

NGFA asks the Board to require potential alternative carriers to address at the hearing proposed by the Board in the NPRM “whether the remedy proposed by the petitioner is unsafe, infeasible, or will substantially impair the replying carrier's ability to serve its other customers adequately or fulfill its common carrier obligations,” as the proposed regulations required of incumbent carriers. (NGFA Comment 6-7.) Additionally, CSXT and NS argue that if the Board adopts the accelerated process, it should modify the proposed treatment of confidential information because closing portions of the proposed hearing to certain parties is unnecessary and would be unfair, prejudicial, and inconsistent with how the Board treats confidential information in other proceedings (accessible subject to a protective order). (CSXT Comment 13; NS Comment 11.)

Potential alternative carriers will be required to attend the staff conference where that information can be discussed and will be required to identify, at the conference, facts showing whether the proposed alternative service would be infeasible, or substantially impair the replying carrier's service to other customers. As for CSXT's and NS's positions on modifying the treatment of confidential information, the Board finds it is best to adopt this aspect of the regulation as proposed in order to maintain flexibility. This flexibility is imperative, for example, if a case involves multiple carriers and requires discussion of highly confidential information. While the Board will leave this aspect of the proposal unchanged, the Board emphasizes that transparency will be pursued to the greatest extent possible.

Regarding the proposed limitations on relief available under the new process, BLET argues the 20-day relief limit would provide a “back-stop to causing most major harms.” (BLET Comment 4-5.) CSXT asks the Board to clarify in the regulations that orders under 49 CFR 1146.2 may not be extended beyond the 20-day period and that additional relief would require a petition under 49 CFR 1146.1. (CSXT Comment 12.) AAR and NS argue that relief under the proposed new accelerated process should be limited to incumbent-based relief. (AAR Comment 10-11; see also NS Comment 5.) Both carrier interests argue it would be impractical for an alternative carrier to provide service for 20 days and that, for safety reasons, crews from the alternative carrier must be qualified to operate on the incumbent's tracks. (AAR Comment 10-11; NS Comment 5-6.) AAR adds that if an incumbent crew is available to train the crew of the alternative carrier, the incumbent crew could simply be directed to provide the service itself. (AAR Comment 10-11.) AAR asserts that limiting 49 CFR 1146.2 to incumbent-based relief would provide more time to identify an alternative carrier for continued relief under 49 CFR 1146.1. (AAR Comment 11.)  32 The Coalition Associations state they are amenable to limiting the relief under 49 CFR 1146.2 to “incumbent-based relief” only, which they understand to include relief that does not involve the grant of trackage rights to an alternative carrier but could include granting an alternative through route using an alternative carrier. (Coalition Ass'ns Reply 7.)

The Board will adopt language clarifying that relief under 49 CFR 1146.2 may not be extended beyond the 20-day period and any additional relief will require a separate petition under 49 CFR 1146.1. This will provide a clearer pathway for any party wishing to seek additional emergency relief. However, the Board will not limit 49 CFR 1146.2 to provide for incumbent-based relief only. Section 1146.1 allows the Board to provide for trackage rights to an alternative carrier with the same safety and feasibility concerns present as those raised regarding 49 CFR 1146.2. Additionally, while the Board expects incumbent-based relief to be utilized in the vast majority of instances, the Board finds it important to maintain flexibility in its process since, for example, there may be situations where arrangements between parties could make trackage-rights relief more feasible. Nevertheless, the Board emphasizes that feasibility will be considered in determining what relief is appropriate in a given case and that it will not order a remedy that it deems infeasible.

Several commenters asked the Board to clarify the proposed service requirements. CSXT questions whether the Board is suggesting that all pleadings must be e-filed with the Board, or whether it is proposing to introduce electronic service of pleadings, which cannot be accomplished through e-filing. (CSXT Comment 12.) AAR and NS each ask the Board to clarify that e-filing alone is not considered sufficient service since e-filing on the Board's website does not effectuate service on other parties or the FRA. (AAR Comment 16; NS Comment 10.) NS states it “supports the Board adding a method of electronic service and suggests that the Board consider using language similar to that contained in 49 CFR 1104.12, which governs service of documents.” (NS Comment 11.) The Coalition Associations agree that the requested clarifications are needed. (Coalition Ass'ns Reply 15.) They also ask the Board to consider requiring all Class I carriers to file with the Board the name and electronic address for service of petitions, which it states would ensure faster delivery to those carriers and maximize their response time. ( Id. )

The Board agrees that the proposed service provisions were unclear and will clarify them by revising the text to read more like that in 49 CFR 1104.12. The Board should be served by e-filing on the Board's website, given the short timeline of these proceedings. Service on other parties, including any proposed alternative carriers, and the FRA may be done by email, hand, or overnight delivery. In addition, all pleadings should also be emailed to ServiceEmergency@stb.gov. However, the Board will not at this time require the Class I carriers to file the name and electronic address for service of petitions. The contact information for the serving carrier is the type of information that should already be in the possession of the petitioner. Moreover, parties are required to make a good faith effort to resolve any service issues through an informal dispute resolution process, during which time they can obtain this information from the carrier, if needed.

BLET expresses concern that emergency service for acute service emergencies might undermine collective bargaining agreements (CBAs). (BLET Comment 5.) The Board does not anticipate that CBAs will be an issue in most emergency service proceedings, but notes that any such issues are best resolved on a case-by-case basis in any event.

Lastly, NMA cautions that the new process, if codified, should be used sparingly because, although “it is not the intent of the [Board] to create a new program to regulate rail, this proposed rulemaking is a slippery slope that has the potential to be abused by bad actors.” (NMA Comment 3; see also AAR Reply 8-9 (noting that it shares the concerns expressed by NMA).) While the accelerated process may impact informal dispute resolution between the parties, the Board finds no reason to assume potential abuse of the accelerated process itself. By its own definition, 49 CFR 1146.2 will be used only sparingly because it is much narrower than 49 CFR 1146.1, and the circumstances under which it can be used are limited. Moreover, it is in the interest of all parties to act in good faith, and the Board will deny petitions filed in bad faith or that otherwise abuse the Board's processes.

Contract and Exempt Traffic. Various carrier interests also ask the Board to clarify that traffic moving pursuant to a contract is not eligible for relief under the Board's proposal. (AAR Comment 18-19, CSXT Comment 12; NS Comment 7-10.) According to NS, the plain language of 49 U.S.C. 10709(c)(1) makes clear that traffic moving pursuant to a contract is outside the Board's jurisdiction, but the Board's final rule adopting 49 CFR 1146.1 “injected unnecessary ambiguity” into the issue. (NS Comment 7-10 (citing Expedited Relief, EP 628, slip op. at 10).) NS argues that even if a railroad stops service, if that service is governed by a contract, “any relief . . . is wholly outside the Board's jurisdiction,” and any remedies “must be provided for in the contract itself ( e.g., a force majeure provision) and are enforceable only in the courts and subject to applicable state law.” ( Id. at 9 (citing 49 U.S.C. 10709(c)(2)).) CSXT asks that the Board require all petitions filed under part 1146 to include a verification that the transportation for which relief is sought is not governed by a contract. (CSXT Comment 12.) AAR also argues exempt traffic should be ineligible for relief under part 1146 because the expedited timelines would not provide sufficient time for the Board to complete the analysis required by statute to revoke an exemption. (AAR Comment 19.) AAR further argues that revocation of an exemption requires a decision of the full Board, not an individual Board Member as contemplated by 49 CFR 1146.2. (AAR Comment 20.)

The Coalition Associations disagree, arguing the Board may exercise its authority to order emergency service over traffic covered by a contract. (Coalition Ass'ns Reply 3.) According to the Coalition Associations, Congress would not have granted the Board the broad emergency authority it did in 49 U.S.C. 11123 only to carve out in 49 U.S.C. 10709 the substantial volume of traffic covered by a contract, nor would Congress have subordinated the public interest to a private contract. (Coalition Ass'ns Reply 4.) The Coalition Associations contend that “[t]he transportation that occurs pursuant to an emergency service order is not occurring under a contract,” but rather is “alternate service pursuant to [49 U.S.C.] 11123,” (Coalition Ass'ns Reply 5), and they identify a prior instance where the Board exercised its 49 U.S.C. 11123 authority over contract traffic, (Coalition Ass'ns Reply 4 (citing Joint Pet. for Serv. Ord., SO 1518 (STB served Oct. 31, 1997), modified and extended (STB served Dec. 4, 1997), further modified and extended (STB served Feb. 17 and 25, 1998), terminated with wind-down period (STB served July 31, 1998).)

NGFA also disagrees with the proposition that contract traffic is not eligible for emergency service relief, pointing to the Board's rejection of this very argument made by AAR in the 1998 final rule in Docket No. EP 628, and asserting that the Board “clearly established that it has jurisdiction to issue an order under [49 U.S.C.] 11123 for movements subject to a transportation contract if the facts and circumstances require it.” (NGFA Reply 1-2 (citing Expedited Relief, EP 628, slip op. at 10.)) NGFA likewise urges the Board to decline NS's request for the Board to clarify that its emergency service authority does not apply to contract traffic, observing that the adoption of such a “blanket, overreaching prohibition” would be bad public policy because it would render the Board powerless to act when rail service failures significantly harm businesses and the public merely because the service is governed by a contract. ( Id. at 3.) Rather, NGFA asks the Board to reaffirm its decision that 49 U.S.C. 11123 grants the Board authority “to act in the public interest to avert rail service emergencies, regardless of whether the service the railroad has failed to provide is governed by a tariff or a contract, subject to the restrictions set forth in [ Expedited Relief, EP 628].” (NGFA Reply 3.) In a similar vein, NGFA disputes the claim that exempt traffic is ineligible for emergency service, citing Expedited Relief, EP 628, where the Board noted that this argument “is clearly wrong” because the Board “retain[s] full jurisdiction to deal with exempted transportation, as [the Board] can revoke the exemption at any time, in whole or in part, under [49 U.S.C.] 10502(d).” (NGFA Reply 2 (quoting Expedited Relief, EP 628, slip op. at 10).)

NITL and ISRI similarly dispute carrier arguments that the Board lacks the power to exercise its emergency service authority over contract and exempt traffic. With respect to contract traffic, NITL and ISRI assert the carriers' arguments “are factually and legally incorrect and contrary to the intent of Congress.” (NITL & ISRI Reply 3.) As for exempt traffic, NITL and ISRI request that the Board partially revoke existing class exemptions so they will not apply to requests for emergency service. ( Id. at 8.) NITL and ISRI argue there are “substantial similarities” between the Board's “partial revocation of the exemption for agricultural commodities and the circumstances involving exempt traffic and emergency service orders,” which would justify the Board partially revoking existing exemptions to permit shippers of exempt commodities to access the Board's emergency service regulations. ( Id. at 3-8.)

Shipper Groups contend that the carriers have not presented any basis for the Board to depart from its decision in Expedited Relief, EP 628, (Shipper Grps. Reply 4), and argue that this issue is outside the scope of the proceeding because it was not included in the NPRM, ( id. at 5).

The NPRM did not make any new proposal regarding the application of section 11123 to contract traffic. In Expedited Relief, EP 628, the Board concluded that any advance rejection of all authority to address situations where a contract exists in an emergency would be inappropriate and declined to include any bright-line prohibition. Expedited Relief, EP 628, slip op. at 10. In the NPRM, the Board made no proposals changing the status of existing law on this issue and sees no reason to revisit that position here.

As for exempt traffic, the Board reiterates that it has the authority to revoke exemptions when appropriate. Petitioners may request partial revocations in their filings at 49 CFR 1146.1 or the new accelerated process at 49 CFR 1146.2 (which will not be decided by a single Member, as the NPRM originally proposed, but by the full Board). See supra at 23-24.

The Regulatory Flexibility Act of 1980 (Regulatory Flexibility Act), 5 U.S.C. 601-612, generally requires a description and analysis of new rules that would have a significant economic impact of a substantial number of small entities. In drafting a rule, an agency is required to: (1) assess the effect that its regulation will have on small entities, (2) analyze effective alternatives that may minimize a regulation's impact, and (3) make the analysis available for public comment. 5 U.S.C. 601-604. In its final rule, the agency must either include a final regulatory flexibility analysis, 5 U.S.C. 604(a), or certify that the proposed rule would not have a “significant impact on a substantial number of small entities,” 5 U.S.C. 605(b).

Because the goal of the Regulatory Flexibility Act is to reduce the cost to small entities of complying with federal regulations, the Regulatory Flexibility Act requires an agency to perform a regulatory flexibility analysis of small entity impacts only when a rule directly regulates those entities. In other words, the impact must be a direct impact on small entities “whose conduct is circumscribed or mandated” by the proposed rule. White Eagle Coop. v. Conner, 553 F.3d 467, 480 (7th Cir. 2009).

In the NPRM, the Board certified under 5 U.S.C. 605(b) that the proposed rule would not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act. 33 The Board explained that the proposed changes were intended to improve the Board's directed service procedures and would not mandate or circumscribe the conduct of small entities. Rather, the Board said, the changes would be largely procedural and would not have a significant economic impact on the Class III rail carriers to which the Regulatory Flexibility Act applies. Because affected shippers or railroads could seek the relief under 49 CFR part 1146 to obtain temporary relief from serious, localized service problems more quickly and effectively, the Board certified under 5 U.S.C. 605(b) that the proposed rules, if promulgated, would not have a significant economic impact on a substantial number of small entities within the meaning of Regulatory Flexibility Act.

The final rule adopted here revises the rules proposed in the NPRM; however, the same basis for the Board's certification of the proposed rule applies to the final rule. Thus, the Board again certifies under 5 U.S.C. 605(b) that this final rule will not have a significant economic impact on a substantial number of small entities as defined by the Regulatory Flexibility Act. A copy of this decision will be served upon the Chief Counsel for Advocacy, Office of Advocacy, U.S. Small Business Administration, Washington, DC 20416.

In the NPRM, the Board sought comments pursuant to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501-3521, Office of Management and Budget (OMB) regulations at 5 CFR 1320.8(d)(3), and Appendix B, about the impact of the collection for the Directed Service Regulations (OMB Control No. 2140-XXXX), concerning: (1) whether the collections of information, as added in the proposed rule, and further described in Appendix A, are necessary for the proper performance of the functions of the Board, including whether the collections have practical utility; (2) the accuracy of the Board's burden estimates; (3) ways to enhance the quality, utility, and clarity of the information collected; and (4) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology, when appropriate.

The Board estimated in the NPRM that the proposed requirements will have a total hourly burden of 2,710 hours. There were no proposed non-hourly burdens associated with these collections. No comments were received pertaining to the collections of this information under the PRA. The new collections will be submitted to OMB for review as required under the PRA, 44 U.S.C. 3507(d) and 5 CFR 1320.11.

Congressional Review Act. Pursuant to the Congressional Review Act, 5 U.S.C. 801-808, the Office of Information and Regulatory Affairs has designated this rule as a non-major rule, as defined by 5 U.S.C. 804(2).

It is ordered:

1. The Board adopts the final rule as set forth in this decision. Notice of the adopted rule will be published in the Federal Register .

2. This decision is effective February 23, 2024.

3. A copy of this decision will be served upon the Chief Counsel for Advocacy, Office of Advocacy, U.S. Small Business Administration.

For the reasons set forth in the preamble, the Surface Transportation Board proposes to amend title 49, chapter X, parts 1011, 1104, 1115, and 1146 of the Code of Federal Regulations as follows:

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679. Regulations governing sideboard protections for GOA groundfish fisheries appear at subpart B of 50 CFR part 680.

The annual 2024 Pacific cod sideboard limit established for non-exempt AFA catcher vessels in the Western Regulatory Area is 640 metric tons (mt), as established by the final 2023 and 2024 harvest specifications for groundfish in the GOA (88 FR 13238, March 2, 2023).

In accordance with § 679.20(d)(1)(iv), the Regional Administrator has determined that the annual 2024 Pacific cod sideboard limit established for non-exempt AFA catcher vessels in the Western Regulatory Area will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 0 mt and is setting aside the remaining 640 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this sideboard directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for the annual 2024 Pacific cod sideboard limit for non-exempt AFA catcher vessels in the Western Regulatory Area of the GOA.

While this closure is effective the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR part 679, which was issued pursuant to section 304(b), and is exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest, as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the directed fishing closure of the annual 2024 Pacific cod sideboard limit for the non-exempt AFA catcher vessels in the Western Regulatory Area of the GOA. NMFS was unable to publish a notification providing time for public comment because the most recent, relevant data only became available as of January 16, 2024.

The Assistant Administrator for Fisheries, NOAA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

Authority: 16 U.S.C. 1801 et seq.

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679. Regulations governing sideboard protections for GOA groundfish fisheries appear at subpart B of 50 CFR part 680.

The 2024 A season pollock sideboard limit established for non-exempt AFA catcher vessels in Statistical Area 610 is 1,102 metric tons (mt), as established by the final 2023 and 2024 harvest specifications for groundfish in the GOA (88 FR 13238, March 2, 2023).

In accordance with § 679.20(d)(1)(iv), the Regional Administrator has determined that the 2024 A season pollock sideboard limit established for non-exempt AFA catcher vessels in Statistical Area 610 will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 0 mt and is setting aside the remaining 1,102 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this sideboard directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for the 2024 A season pollock sideboard limit for non-exempt AFA catcher vessels in Statistical Area 610 of the GOA.

While this closure is effective the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR part 679, which was issued pursuant to section 304(b), and is exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest, as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the directed fishing closure of the 2024 A season pollock sideboard limit for the non-exempt AFA catcher vessels in Statistical Area 610 of the GOA. NMFS was unable to publish a notification providing time for public comment because the most recent, relevant data only became available as of January 16, 2024.

The Assistant Administrator for Fisheries, NOAA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.