The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority, as it updates airport names and airspace descriptions. This update is an administrative change and does not change the airspace boundaries or operating requirements.

Class E airspace is published in paragraphs 6002 and 6004 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11H, dated August 11, 2023, and effective September 15, 2023. FAA Order JO 7400.11H is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next FAA Order JO 7400.11 update. FAA Order JO 7400.11H lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to 14 CFR part 71 amends Class E surface airspace and Class E airspace designated as an extension to a Class D surface area for Fort Novosel, Ozark, AL, and Fort Moore, Columbus, GA, by updating each airport's name (formerly Fort Rucker and Fort Benning, respectively), as well as updating the descriptions by making editorial changes, replacing the term Notice to Airmen with Notice to Air Missions in the appropriate descriptions. In addition, this action updates the geographic coordinates of CAIRNES VOR in the Class E airspace designated as an extension to a Class D surface area for Fort Novosel. This action is an administrative change and does not affect the airspace boundaries or operating requirements; therefore, notice and public procedure under 5 U.S.C. 553(b) is unnecessary.

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

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

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

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

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 5 U.S.C. 553(b). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency, for good cause, finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable and contrary to the public interest. There is insufficient time to allow for a reasonable comment period prior to the start date for dredging operations. The rule must be in force by February 6, 2024 to serve its purpose of ensuring the safety of the public from hazards associated with dredging operations.

Under 5 U.S.C. 553(d)(3), the Coast Guard also finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register for the same reasons discussed above.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The COTP has determined that there are potential hazards associated with dredging operations, such as submerged and floating pipelines, booster pumps, head sections, and support vessels with a restricted ability to maneuver. The purpose of this rulemaking is to ensure the safety of personnel, vessels, and the marine environment within a 250-yard radius of dredging operations and all associated pipeline and equipment.

This rule establishes two safety zones, both of which will be in effect from February 6, 2024 through April 30, 2024. The safety zones are necessary to facilitate annual maintenance dredging of the Delaware River in the vicinity of Marcus Hook Range and Anchorage 7 off Marcus Hook Range. (The location of the anchorage is described in 33 CFR 110.157(a)(8).) Dredging will most likely be conducted with the dredge ESSEX, though other dredges may be used, along with the associated dredge pipeline and booster pumps. The pipeline consists of a combination of floating hoses immediately behind the dredge and submerged pipeline leading to upland disposal areas. Booster pumps, located between the dredge pump and the discharge point, allow the dredge pump to operate more efficiently. Due to the hazards related to dredging operations, the associated pipeline and the location of submerged pipeline, safety zones are being established in the following areas:

(1) Safety Zone One includes all navigable waters within 250 yards of the dredge, which will be displaying lights and shapes for vessels restricted in ability to maneuver, as described in 33 CFR 83.27, and all related dredge equipment when the dredge is operating in Marcus Hook Range, and Anchorage 7. This safety zone is being established for the duration of the maintenance project. Vessels requesting to transit the safety zone must contact the dredge on VHF channel 13 or 16 at least 1 hour prior to arrival to arrange safe passage. At least one side of the main navigational channel will be kept clear for safe passage of vessels in the vicinity of the safety zone. At no time will the entire main navigational channel be closed to vessel traffic. Vessels should avoid meeting in these areas where one side of the main navigational channel is open and proceed per this rule and the Rules of the Road (33 CFR subchapter E).

(2) Safety Zone Two includes all the waters of Anchorage 7 off Marcus Hook Range, as described in 33 CFR 110.157(a)(8). Vessels wishing to anchor in Anchorage 7 off Marcus Hook Range while this rule is in effect must obtain permission from the COTP at least 24 hours in advance by calling (215) 271-4807. Vessels requesting permission to anchor within Anchorage 7 off Marcus Hook must be at least 650 feet in overall length. The COTP will permit, at maximum, only one vessel to anchor at a time, on a “first-come, first-served” basis. Vessels will only be allowed to anchor for a 12 hour period. Vessels that require an examination by the Public Health Service, Customs, or Immigration authorities will be directed to an anchorage by the COTP for the required inspection. Vessels are encouraged to use Anchorage 9 near the entrance to Mantua Creek, Anchorage 10 at Naval Base, Philadelphia, and Anchorage 6 off Deepwater Point Range as alternative anchorages.

Preference is being given to vessels at least 650 feet in length in Anchorage 7 while this rule is in effect, because vessels of this size are limited in their ability to utilize other anchorages due to draft. The depth of Anchorage 7 provides an acceptable depth for large vessels to bunker and stage for facility arrival. Smaller vessels maintain a host of other options to include, but are not limited to, Anchorage 9 and 10, as recommended above.

Entry into, transiting, or anchoring within safety zone one is prohibited unless vessels obtain permission from the COTP or make satisfactory passing arrangements with the operating dredge per this rule and the Rules of the Road (33 CFR subchapter E). The COTP may issue updates regarding the vessel and equipment being utilized for these dredging operations via Marine Safety Information Bulletin and Broadcast Notice to Mariners.

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

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

This regulatory action determination is based on size, location, duration, and traffic management of the safety zones. The safety zones will be enforced in an area and in a manner that does not conflict with transiting commercial and recreational traffic. At least one side of the main navigational channel will be open for vessels to transit at all times. Moreover, the Coast Guard will work in coordination with the pilots to ensure vessel traffic can transit the area safely.

Although this regulation will restrict access to regulated areas, the effect of this rule will not be significant because there are a number of alternate anchorages available for vessels to anchor. Furthermore, vessels may transit through the safety zones with the permission of the COTP or make satisfactory passing arrangements with the dredge ESSEX, or other dredge(s) that may be used in accordance with this rule and the Rules of the Road (33 CFR subchapter E). The Coast Guard will notify the maritime public about the safety zones through maritime advisories, allowing mariners to alter their plans accordingly.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves two safety zones to protect waterway users that would prohibit entry within 250 yards of dredging operations and will close only one side of the main navigation channel. Vessels can request permission to enter the channel. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating documents mentioned in this preamble as being available in the docket, see the ADDRESSES section of this preamble.

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

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

In 1991, EPA classified a 13-county area in and around the Atlanta, Georgia, metropolitan area as a serious ozone nonattainment area for the 1979 1-hour ozone national ambient air quality standards (NAAQS or standard), triggering the requirement for the State to establish an enhanced I/M program for the area. 1 In 1996, Georgia submitted its enhanced I/M program to EPA for incorporation into the SIP. EPA granted interim approval of the State's program in 1997 and full approval in 2000. See 62 FR 42916 (August 11, 1997) and 65 FR 4133 (January 26, 2000), respectively.

On June 8, 2022, and June 6, 2023, Georgia submitted SIP revisions seeking to amend various I/M regulations in Chapter 391-3-20— Enhanced Inspection and Maintenance, of Georgia's SIP. In this rulemaking, EPA is approving changes to Rules 391-3-20-.01— Definitions; Rule 391-3-20-.03, Covered Vehicles; Exemptions; Rule 391-3-20-.04— Emission Inspection Procedures; Rule 391-3-20-.05— Emission Standards; Rule 391-3-20-.09— Inspection Station Requirements; Rule 391-3-20-.10— Certificates of Authorization; Rule 391-3-20-.11— Inspector Qualifications and Certification; Rule 391-3-20-.13— Certificate of Emission Inspection; Rule 391-3-20-.15— Repairs and Retests; Rule 391-3-20-.17— Waivers; and Rule 391-3-20-.22— Enforcement. EPA is approving these revisions because these changes will not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable CAA requirement. 2

In a notice of proposed rulemaking (NPRM), published on December 21, 2023 (88 FR 88310), EPA proposed to approve the June 8, 2022, and June 6, 2023, SIP submissions. The details of Georgia's submissions, which remove obsolete references and provisions; update the State's I/M requirements; update and remove outdated terminology; remove a requirement; and makes other minor changes to Georgia's enhanced I/M program of the Georgia SIP, as well as EPA's rationale for approve the changes, are described in the December 21, 2023, NPRM. Comments on the December 21, 2023, NPRM were due on or before January 22, 2024. No comments were received on the NPRM, adverse or otherwise.

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, and as discussed in Section I of this preamble, EPA is finalizing the incorporation by reference of Georgia Rule 391-3-20-.09— Inspection Station Requirements; Rule 391-3-20-.10— Certificates of Authorization; Rule 391-3-20-.13— Certificate of Emission Inspection; Rule 391-3-20-.15— Repairs and Retests; Rule 391-3-20-.17— Waivers; and Rule 391-3-20-.22— Enforcement, all of which have a state-effective date of April 19, 2022, into the Georgia SIP. Further, EPA is finalizing the incorporation by reference of Georgia Rule 391-3-20-.01— Definitions; Rule 391-3-20-.03, Covered Vehicles; Exemptions; Rule 391-3-20-.04— Emission Inspection Procedures; Rule 391-3-20-.05— Emission Standards, and Rule 391-3-20-.11— Inspector Qualifications and Certification, all of which have a state-effective date of March 21, 2023, into the Georgia SIP. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 4 Office (please contact the person identified in the “For Further Information Contact” section of this preamble for more information). Therefore, the revised materials as stated above, have been approved by EPA for inclusion in the State implementation plan, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 3

EPA is approving the aforementioned changes to various I/M regulations in Chapter 391-3-20— Enhanced Inspection and Maintenance, of the Georgia SIP. Specifically, EPA is finalizing the approval of the June 8, 2022, and June 6, 2023, SIP revisions which amends Georgia Rules 391-3-20-.01— Definitions; Rule 391-3-20-.03, Covered Vehicles; Exemptions; Rule 391-3-20-.04— Emission Inspection Procedures; Rule 391-3-20-.05— Emission Standards; Rule 391-3-20-.09— Inspection Station Requirements; Rule 391-3-20-.10— Certificates of Authorization; Rule 391-3-20-.11— Inspector Qualifications and Certification; Rule 391-3-20-.13— Certificate of Emission Inspection; Rule 391-3-20-.15— Repairs and Retests; Rule 391-3-20-.17— Waivers; and Rule 391-3-20-.22— Enforcement.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, these actions merely approve state law as meeting Federal requirements and do not impose additional requirements beyond those imposed by state law. For that reason, these actions:

• Are not significant regulatory actions subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);

• Do not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Are certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Do not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Do not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Are not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because they approve a state program;

• Are not significant regulatory actions subject to Executive Order 13211 (66 FR 28355, May 22, 2001); and

• Are not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA.

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the proposed rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

Executive Order 12898 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, Feb. 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”

EPD did not evaluate EJ considerations as part of its SIP submittals; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. EPA did not perform an EJ analysis and did not consider EJ in these actions. Due to the nature of the actions being taken here, these actions are expected to have a neutral to positive impact on the air quality of the affected area. Consideration of EJ is not required as part of these actions, and there is no information in the record inconsistent with the stated goal of E.O. 12898 of achieving EJ for people of color, low-income populations, and Indigenous peoples.

These actions are subject to the Congressional Review Act, and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. These actions are not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of these actions must be filed in the United States Court of Appeals for the appropriate circuit by April 9, 2024. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of these actions for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. These actions may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as follows:

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

On November 2, 2023 (88 FR 75246), the EPA proposed to approve the following rule into the California SIP.

We proposed to approve this rule because we determined that it complies with the relevant CAA requirements. Our proposed action contains more information on the rule and our evaluation.

The EPA's proposed action provided a 30-day public comment period. During this period, we received two comments that concerned issues outside the scope of this rulemaking. These comments are available for review in the docket for this action.

No comments were submitted that change our assessment of the rule as described in our proposed action. Therefore, as authorized in section 110(k)(3) of the Act, the EPA is fully approving this rule into the California SIP. The July 12, 2023 versions of CARB's California Code of Regulations (CCR), Title 17, Division 3, Chapter 1, Subchapter 8, Article 1, Section 94014 and CP-204 Certification Procedure for Vapor Recovery Systems of Cargo Tanks (incorporated by reference) will replace the previously approved versions of this regulation in the SIP.

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of California Air Resources Board, California Code of Regulations, Title 17, Division 3, Chapter 1, Subchapter 8, Article 1, Section 94014—Certification of Vapor Recovery Systems—Cargo Tanks, excluding sub-sections (a) through (d), amended on July 12, 2023, and Certification Procedure—CP-204 Certification Procedure for Vapor Recovery Systems of Cargo Tanks, amended on July 12, 2023 (incorporated by reference), both of which regulates VOCs from vapor recovery systems of gasoline cargo tanks. The EPA has made, and will continue to make, these documents available through www.regulations.gov and at the EPA Region IX Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it approves a state program;

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); and

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act.

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

Executive Order 12898 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, February 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. The EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” The EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”

The State did not evaluate environmental justice considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. The EPA did not perform an EJ analysis and did not consider EJ in this action. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of Executive Order 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.

This action is subject to the Congressional Review Act, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 9, 2024. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

For the reasons stated in the preamble, the Environmental Protection Agency amends part 52, chapter I, title 40 of the Code of Federal Regulations as follows:

In FR Doc. 2023-24293 of November 22, 2023 (88 FR 81540), there were a number of technical and typographical errors that are identified and corrected in this correcting document. The corrections in this correcting document are effective as if they had been included in the document that appeared in the November 22, 2023 Federal Register . Accordingly, the corrections are effective January 1, 2024.

On pages 81546, 82156, 82157, and 82158, we are correcting the estimates of the changes in payments to account for our correction to apply the trim that we inadvertently failed to apply to claims for the Hyperbaric Oxygen Therapy APC (APC 5061). When an individual claim contains 50 or more units on the primary code's line used for ratesetting, the OPPS ratesetting programs exclude, or trim, these lines from the calculation of the geometric mean for an ambulatory payment classification (APC). However, this trim was inadvertently not included in the ratesetting process for two APCs: Hyperbaric Oxygen Therapy (APC 5061) and Ancillary Outpatient Services When Patient Dies (APC 5881). We are applying this trim and removing these lines where the primary code's units contain 50 or more units for CY 2024 OPPS ratesetting. The geometric mean cost for APC 5061 will change significantly as a result of this trim, from what was originally $75.61 to $135.89, because there is a claim for this APC that contained more than 50 units on an individual line that was originally used in CY 2024 OPPS ratesetting.

In addition, the change in the geometric mean cost for APC 5061 necessitates changing the OPPS weight scalar and OPPS relative payment weights to maintain budget neutrality for CY 2024, which results in changes in OPPS payment rates for items and services calculated using the weight scalar.

On page 81578, we are correcting the weight scalar to use the updated number calculated after correct application of the trim.

On pages 81592, 81593, and 81595, we are correcting several figures used in the sample calculations of the full national unadjusted payment rate, the reduced national unadjusted payment rate, and the adjusted copayment amount for an APC group to use the figures after application of the trim and resulting change in the payment rates.

On page 81669, we are adding additional language that we inadvertently omitted regarding HCPCS codes G2066 (Interrogation device evaluation(s), (remote) up to 30 days; implantable cardiovascular physiologic monitor system, implantable loop recorder system, or subcutaneous cardiac rhythm monitor system, remote data acquisition(s), receipt of transmissions and technician review, technical support and distribution of results), 93297 (Interrogation device evaluation(s), (remote) up to 30 days; implantable cardiovascular physiologic monitor system, including analysis of 1 or more recorded physiologic cardiovascular data elements from all internal and external sensors, analysis, review(s) and report(s) by a physician or other qualified health care professional), and 93298 (Interrogation device evaluation(s), (remote) up to 30 days; subcutaneous cardiac rhythm monitor system, including analysis of recorded heart rhythm data, analysis, review(s) and report(s) by a physician or other qualified health care professional). Specifically, we are adding language that we inadvertently omitted stating that the OPPS status indicators for CPT codes 93297 and 93298 have been revised to indicate that they will be separately payable under the OPPS.

On page 81801, in the table titled “Table 95: Skin Substitute Assignments to High-Cost and Low-Cost Groups for CY 2024”, we are correcting an inadvertent error in the skin substitute group assignment for HCPCS code Q4282 (Cygnus dual, per square centimeter) for CY 2023 and CY 2024. HCPCS code Q4282 is assigned to the high-cost skin substitute group for those years.

On pages 81958 and 82162, our application of the trim and correction to the OPPS weight scalar and OPPS relative payment weights, results in a change to the OPPS payment rates. The revised OPPS payment rates required an alteration in our estimate of prospective aggregate ASC expenditures, which in turn necessitates a correction to the ASC weight scalar and ASC relative payment weights because the ASC Payment System ratesetting methodology utilizes the scaled OPPS relative weights. Therefore, we are revising our ASC weight scalar from 0.8881 to 0.889.

On page 81971, we are correcting the Cataracts Visual Function measure CBE number and endorsement date. Additionally, we are replacing inadvertently included language that did not pertain to the Cataracts Visual Function measure with the measure endorsement removal information.

On page 81993, in the table titled “Table 128: Finalized Hospital OQR Program Measure Set for the CY 2026 Payment Determination,” we are adding a dagger symbol (“†”) after the Cataracts Visual Function measure name, noting that the CBE endorsement for this measure was removed. We are also adding two double dagger symbols (“††”) both following the COVID-19 Vaccination Among Health Care Personnel (HCP) measure name in Table 128 and as a table note following the table to inform readers that the CBE number was assigned to the original version of the COVID-19 Vaccination Coverage Among HCP measure but not the modified version of the measure that we finalized in the CY 2024 OPPS/ASC final rule with comment period.

On page 81994, in the table titled “Table 129: Finalized Hospital OQR Program Measure Set for the CY 2027 Payment Determination and Subsequent Years,” we are removing inadvertent language related to the HOPD Procedure Volume measure—a measure that was proposed in the CY 2024 OPPS/ASC proposed rule and not finalized after consideration of the public comments received—in the table and in the associated table note following the table. We are also adding a dagger symbol (“†”) after the Cataracts Visual Function measure name, noting that CBE endorsement for this measure was removed. We are also adding two double dagger symbols (“††”) both following the COVID-19 Vaccination Among Health Care Personnel measure name in Table 129 and as a table note following the table to inform readers that the CBE number was assigned to the original version of the COVID-19 Vaccination Coverage Among HCP measure but not the modified version of the measure that we finalized in the CY 2024 OPPS/ASC final rule with comment period.

On page 82014, we are correcting the citation to the CY 2024 OPPS/ASC COVID-19 Vaccination Coverage Among HCP measure modification proposal for the ASCQR Program.

On page 82031, we are correcting the link referenced in footnote 629 and updating the footnote citation accordingly.

On page 82037, in the table titled “Table 139: Finalized ASCQR Program Measure Set for the CY 2024 Reporting Period/CY 2026 Payment Determination”, we are correcting the CBE number for the COVID-19 Vaccination Coverage Among HCP measure. We also are adding two dagger symbols (“††”) following the corrected CBE number for the COVID-19 Vaccination Among Health Care Personnel measure, and a related table note following the table associated with the two dagger symbols, to inform readers that the CBE number was assigned to the original version of the COVID-19 Vaccination Coverage Among HCP measure and not the modified version of the measure that we finalized in the CY 2024 OPPS/ASC final rule with comment period.

On page 82038, in table titled “Table 140: Finalized ASCQR Program Measure Set for the CY 2025 Payment Determination/CY 2027 Payment Determination”, we are correcting the CBE numbers for the COVID-19 Vaccination Coverage Among HCP, and the Risk-Standardized Patient-Reported Outcome-Based Performance Measure (PRO-PM) Following Elective Primary Total Hip Arthroplasty (THA) and/or Total Knee Arthroplasty (TKA) in the ASC Setting (THA/TKA PRO-PM) measures. We also are adding two dagger symbols (“††”) following the corrected CBE number for the COVID-19 Vaccination Among Health Care Personnel measure, and a related table note following the table associated with the two dagger symbols, to inform readers that the CBE number was assigned to the original version of the COVID-19 Vaccination Coverage Among HCP measure and not the modified version of the measure that we finalized in the CY 2024 OPPS/ASC final rule with comment period.

On page 82142 through 82148, we inadvertently neglected to carry over the correct number of ASCs that performed THA/TKA procedures and the average number of paid Medicare FFS claims for THA/TKA procedures performed by ASCs in CY 2022, reflected in Table 138, into our burden calculation estimates. We are correcting the estimates of the number of ASCs that will perform THA/TKA procedures and the average number of THA/TKA procedures that will be performed by ASCs for the CY 2025 through 2028 reporting periods as well as the associated burden estimates for those same reporting periods.

On page 82072, in the first full paragraph, first sentence, we incorrectly stated that REHs would be granted the opportunity to review their data before the information is published during a 30-day review and corrections period in our discussion of the preview period policy and public reporting of quality data generally. We are making corrections to state that REHs would be granted the opportunity to preview their data before the information is published during a 30-day preview period. Similarly, in the following sentence, we are replacing the current reference to “preview process” to “preview period policy,” to make clear that the policy described in this paragraph would align with that of the Hospital OQR Program. We are also adding inadvertently omitted language to finalize our policies as proposed related to public reporting of quality data generally under the REHQR Program and codifying these policies at § 419.95(f).

On page 82073, we are adding inadvertently omitted language to finalize our policies as proposed related to public reporting of REHQR Program claims-based measures.

On page 82074, we are adding inadvertently omitted language to finalize our policies as proposed related to public reporting of the Median Time from ED Arrival to ED Departure for Discharged ED Patients measure.

On pages 81545, 82081, 82082, 82084, 82085, 82088, 82097, 82113, and 82120, we made grammatical and typographical errors.

On page 81547, we made a technical error. Specifically, the summary language that we included in the CY 2024 OPPS/ASC proposed rule was not updated to reflect the hospital price transparency regulatory impact analysis that we included in the CY 2024 OPPS/ASC final rule with comment period.

On page 82081, we made a technical error in our reference to the Consolidated Appropriations Act, 2021.

On pages 82099 and 82118, we inadvertently left out the links to articles referenced in the footnotes which should be included for ease of access.

On page 82171, we made a technical error in the link included in footnote 858 such that it does not direct the reader to the article referenced.

On page 81850, in the second full sentence in the third column, the citations to the CY 2024 Physician Fee Schedule (PFS) final rule are incorrect and should have instead read 88 FR 79089 through 79093. In that same sentence, the current policy description is inaccurate. We are correcting these errors by replacing the sentence with the following: “Currently, periodic assessments are allowed to be furnished via audio-only telecommunication through CY 2023, and in the CY 2024 PFS final rule (88 FR 79089 through 79093), we finalized that periodic assessments may be furnished audio-only through the end of CY 2024, to the extent that use of audio-only communications technology is permitted under the applicable SAMHSA and DEA requirements at the time the service is furnished, and all other applicable requirements are met.”

On pages 81854, 81855 and 82162, we are making corrections to the value of the payment adjustment for IOP services furnished by OTPs due to technical corrections to the OPPS weight scalar.

Due to the technical correction to apply a trim to lines for the primary codes for two APCs, Hyperbaric Oxygen Therapy (APC 5061) and Ancillary Outpatient Services When Patient Dies (APC 5881), which remove the resulting excluded claims from CY 2024 OPPS ratesetting, there is a significant change to the geometric mean cost for APC 5061. As there is a significant change in the payment rate for APC 5061, we had to slightly reduce the OPPS weight scalar and relative payment weights to maintain OPPS budget neutrality. This change results in a slight reduction in payment rates for other OPPS items and services calculated using the weight scalar. As a result of the technical correction to apply the trim and the associated adjustment to the weight scalar, all payment rates and copayment amounts for items and services calculated using the weight scalar have changed in Addendum A. We note that these changes to the OPPS payments and copayments are minor. The updated file is available online on the CMS website at https://www.cms.gov/medicare/payment/prospective-payment-systems/hospital-outpatient.

Due to the technical correction to apply the trim to two APCs, Hyperbaric Oxygen Therapy (APC 5061) and Ancillary Outpatient Services When Patient Dies (APC 5881), which remove the resulting excluded claims from CY 2024 OPPS ratesetting, there is a significant change to the geometric mean cost for APC 5061. As there is a significant change in the payment rate for APC 5061, we had to slightly reduce the OPPS weight scalar and relative payment weights to maintain OPPS budget neutrality. This change results in a slight reduction in payment rates for other OPPS items and services calculated using the weight scalar. This correction will require minor changes to most payment and copayment rates in Addendum B. The updated file is available online on the CMS website at https://www.cms.gov/medicare/payment/prospective-payment-systems/hospital-outpatient.

We inadvertently failed to account for the cost of a device that is an integral part of the kidney histotripsy procedure in our assignment of HCPCS code C9790 (Histotripsy ( i.e., non-thermal ablation via acoustic energy delivery) of malignant renal tissue, including image guidance) to APC 1575, which has payment rate of $12,500.50 and a minimum unadjusted copayment of $2,500.10. We failed to include the cost of the device for the kidney histotripsy procedure in the payment rate that we reported for HCPCS code C9790 in the CY 2024 OPPS/ASC final rule. To correct this error, we are assigning HCPCS code C9790 to the APC with a payment rate that includes the device cost for the kidney histotripsy procedure—APC 1576—with a payment rate of $17,500.50 and a minimum unadjusted copayment of $3,500.10.

We incorrectly assigned status indicator “E1” to CPT code 90623 (Meningococcal pentavalent vaccine, conjugated Men A, C, W, Y- tetanus toxoid carrier, and Men B-FHbp, for intramuscular use), meaning the code is not covered by Medicare, even though the meningococcal vaccine has approval from the Food and Drug Administration (FDA). We are correcting the error by changing the status indicator from “E1” to “M,” to indicate that the code is not paid under the OPPS.

We incorrectly assigned HCPCS code A9272 (Wound suction, disposable, includes dressing, all accessories and components, any type, each) status indicator “E1” to indicate that the code is not covered by Medicare, even though this code is payable under the Home Health Prospective Payment System (HH PPS) effective January 1, 2024. We are correcting this error by changing the status indicator from “E1” to “A” to indicate that the code is payable under a fee schedule or payment system other than the OPPS.

We incorrectly listed HCPCS code C7561 (Debridement, bone (includes epidermis, dermis, subcutaneous tissue, muscle and/or fascia, if performed); first 20 sq cm or less with manual preparation and insertion of drug-delivery device(s), deep ( e.g., subfascial)) as an active code with an OPPS status indicator of “E1” to indicate that the code is an ASC-only code that is not separately payable under the OPPS because the combined service, as described by the code, is not reasonable and necessary. However, this code already exists as HCPCS code C7500 (Debridement, bone including epidermis, dermis, subcutaneous tissue, muscle and/or fascia, if performed, first 20 sq cm or less with manual preparation and insertion of deep ( e.g., subfacial) drug-delivery device(s)), and therefore this service does not require a new HCPCS code. Consequently, we are deleting HCPCS code C7561 and will not be establishing the code for the January 2024 update.

We inadvertently assigned CPT code 96202 (Multiple-family group behavior management/modification training for parent(s)/guardian(s)/caregiver(s) of patients with a mental or physical health diagnosis, administered by physician or other qualified health care professional (without the patient present), face-to-face with multiple sets of parent(s)/guardian(s)/caregiver(s); initial 60 minutes) a status indicator of “E1,” which indicates that the code is not covered by Medicare, even though this code is payable in settings other than the outpatient hospital setting. We also incorrectly assigned CPT code 96203 (Multiple-family group behavior management/modification training for parent(s)/guardian(s)/caregiver(s) of patients with a mental or physical health diagnosis, administered by physician or other qualified health care professional (without the patient present), face-to-face with multiple sets of parent(s)/guardian(s)/caregiver(s); each additional 15 minutes (list separately in addition to code for primary service)) a status indicator of “N,” which means that a service is payable in the OPPS but its cost is packaged into an associated primary service, because CPT code 96203 is an add-on code that is billed with CPT code 96202. However, an add-on service cannot have a payable status in the OPPS when its associated primary service has a non-payable status in the OPPS. These services are covered Medicare services and are assigned payable indicators under the Physician Fee Schedule (PFS). While these services are not payable under OPPS, they are payable under the PFS; therefore, we are correcting the status indicator to “A.”

Due to the technical correction to apply a trim to two APCs, Hyperbaric Oxygen Therapy (APC 5061) and Ancillary Outpatient Services When Patient Dies (APC 5881) and removing the resulting excluded claims from CY 2024 OPPS ratesetting, there is a significant change to the geometric mean cost for APC 5061. As there is a significant change in the payment rate for APC 5061, we had to slightly reduce the OPPS weight scalar and relative payment weights to maintain OPPS budget neutrality. This change results in a slight reduction in payment rates for other OPPS items and services calculated using the weight scalar. This correction will require minor changes to most payment and copayment rates in Addendum C. The updated file is available online on the CMS website at https://www.cms.gov/medicare/payment/prospective-payment-systems/hospital-outpatient.

We inadvertently failed to consider the cost of a device that is an integral part of the kidney histotripsy procedure when we assigned HCPCS code C9790 to APC 1575, which has payment rate of $12,500.50 and a minimum unadjusted copayment of $2,500.10. We failed to include the cost of the device for the kidney histotripsy procedure in the payment rate that we reported for HCPCS code C9790 in the CY 2024 OPPS/ASC final rule with comment period. To correct this error, we are assigning HCPCS code C9790 to the APC with a payment rate that includes the device cost for the kidney histotripsy procedure—APC 1576—with a payment rate of $17,500.50 and a minimum unadjusted copayment of $3,500.10.

Due to the technical correction to apply a trim to lines for the primary codes for two APCs, Hyperbaric Oxygen Therapy (APC 5061) and Ancillary Outpatient Services When Patient Dies (APC 5881), which remove the resulting excluded claims from CY 2024 OPPS ratesetting, there is a significant change to the geometric mean cost for APC 5061. As there is a significant change in the payment rate for APC 5061, we had to slightly reduce the OPPS weight scalar and relative payment weights to maintain OPPS budget neutrality. This change results in a slight reduction in payment rates for other OPPS items and services calculated using the weight scalar. The device offset amounts displayed in Addendum P are calculated by multiplying the OPPS APC payment rate by a procedure's device offset percentage, and therefore the correction to OPPS APC payment rates affects the affects the device offset amounts for any affected APCs. Therefore, we have recalculated the device offset amounts for both device-intensive and non-device-intensive procedures in Addendum P.

To view the corrected CY 2024 OPPS status indicators, APC assignments, relative weights, payment rates, copayment rates, device-intensive status, and short descriptors for Addenda A, B, C, and P that resulted from the technical corrections described in this correcting document, we refer readers to the Addenda and supporting files that are posted on the CMS website at: https://www.cms.gov/medicare/payment/prospective-payment-systems/hospital-outpatient/. Select “CMS-1786-CN” from the list of regulations. All corrected Addenda for this correcting document are contained in the zipped folder titled “2024 OPPS Final Rule Addenda” at the bottom of the page for CMS-1786-CN.

Due to the technical correction to apply a trim to lines for the primary codes for two APCs, Hyperbaric Oxygen Therapy (APC 5061) and Ancillary Outpatient Services When Patient Dies (APC 5881), which remove the resulting excluded claims from CY 2024 OPPS ratesetting, there is a significant change to the geometric mean cost for APC 5061. As there is a significant change in the payment rate for APC 5061, we had to slightly reduce the OPPS weight scalar and relative payment weights to maintain OPPS budget neutrality. This change results in a slight reduction in payment rates for other OPPS items and services calculated using the weight scalar. The correction to apply the trim to APC 5061 and the resulting change to the OPPS weight scalar, OPPS relative payment weights, and OPPS payment rates necessitate a revision to the CY 2024 ASC weight scalar and ASC payment rates, which results in changes in the columns titled “Final CY 2024 Payment Weight” and “Final CY 2024 Payment Rate” in Addendum AA to separately paid covered surgical procedures that are not paid at the PFS-equivalent rate.

We inadvertently failed to account for the cost of a device that is an integral part of the kidney histotripsy procedure when establishing a payment rate for HCPCS code C9790 (Histotripsy ( i.e., non-thermal ablation via acoustic energy delivery) of malignant renal tissue, including image guidance), which has a payment weight of 127.0479 and a payment rate of $6,798.84. However, we failed to include the cost of the device for the kidney histotripsy procedure in the payment rate that we reported for HCPCS code C9790 in the CY 2024 OPPS/ASC final rule. To correct this error, we are replacing the payment weight of 127.0479 and the payment rate of $6,798.84 with the payment weight of 177.8649 and the payment rate of $9,527.91, respectively, for HCPCS code C9790 in Addendum AA.

We inadvertently omitted CPT code 0810T (Subretinal injection of a pharmacologic agent, including vitrectomy and 1 or more retinotomies) from Addendum AA. As we explained in pages 81617 through 81618 of the CY 2024 OPPS/ASC final rule with comment period, CPT code 0810T is replacing HCPCS code C9770. We are correcting this error in Addendum AA by adding CPT code 0810T (Subretinal injection of a pharmacologic agent, including vitrectomy and 1 or more retinotomies).

We inadvertently created HCPCS code C7561 (Debridement, bone (includes epidermis, dermis, subcutaneous tissue, muscle and/or fascia, if performed); first 20 sq cm or less with manual preparation and insertion of drug-delivery device(s), deep ( e.g., subfascial) to describe the code pair combination of CPT code 11044 (Debridement, bone (includes epidermis, dermis, subcutaneous tissue, muscle and/or fascia, if performed); first 20 sq cm or less) and CPT code 20700 (Manual preparation and insertion of drug-delivery device(s), deep ( e.g., subfascial) (list separately in addition to code for primary procedure). This code pair currently exists as HCPCS code C7500 (Debridement, bone including epidermis, dermis, subcutaneous tissue, muscle and/or fascia, if performed, first 20 sq cm or less with manual preparation and insertion of deep ( e.g., subfacial) drug-delivery device(s)). Because C7500 already describes this code pair, this code pair does not require a new HCPCS code. We are correcting this error in Addenda AA and FF by adding HCPCS code C7500 and removing HCPCS code C7561.

On page 81922 of the CY 2024 OPPS/ASC final rule with comment period, we stated we would finalize a device-intensive assignment with the default device offset percentage of 31 percent and assign a payment indicator of “J8” to HCPCS code C9734 (Focused ultrasound ablation/therapeutic intervention, other than uterine leiomyomata, with magnetic resonance (mr) guidance) for CY 2024; however, in Addendum AA, we inadvertently assigned a payment indicator of “G2” to this code. Therefore, in Addendum AA, in the column titled “CY 2024 Payment Indicator,” we are replacing payment indicator “G2” with payment indicator “J8”—Device-intensive procedure; paid at adjusted rate—and are revising the ASC payment weight and payment rate to 152.9811 and $8,186.63, respectively.

On page 81921 of the CY 2024 OPPS/ASC final rule with comment period, we stated we are finalizing our proposed device offset amounts for CPT code 58356, which exceeded our device-intensive threshold of 30 percent and to which we assigned device-intensive status and a payment indicator of “J8”—Device-intensive procedure; paid at adjusted rate. However, in Addendum AA, we inadvertently assigned a payment indicator of “G2” to this code. Therefore, in Addendum AA, we are correcting the payment indicator in the column titled “CY 2024 Payment Indicator” to “J8” and are revising the payment weight and payment rate to 62.4392 and $3,341.37, respectively.

We inadvertently assigned CPT codes 0266T and 0620T and HCPCS code C9790 a discounting status of “Y” (Yes) in the column titled “Subject to Multiple Procedure Discounting”. Our multiple procedure discounting logic assigns a discounting status of “N” (No) to procedures with a status indicator “S,” which indicates that the procedure or service is separately paid and is not subject to multiple procedure discounting under the OPPS. We assigned CPT codes 0266T and 0620T and HCPCS code C9790 to status indicator “S” in OPPS Addendum B for CY 2024, and therefore, these codes should have a discounting status of “N” based on our multiple procedure discounting policy (72 FR 42513 through 42516). Therefore, we are correcting this error by deleting “Y” (Yes) and inserting “N” (No) in the column titled “Subject to Multiple Procedure Discounting,” indicating that the procedure is not subject to multiple procedure discounting, for CPT codes 0266T and 0620T and HCPCS code C9790.

The correction to apply the trim to APC 5061 and the resulting change to the OPPS weight scalar and OPPS payment rates, necessitate a revision to the CY 2024 ASC weight scalar and ASC payment rates for certain separately paid ancillary procedures that are not paid at the PFS-equivalent rate. The correction to the ASC weight scalar and OPPS payment rates result in changes in the columns titled “Final CY 2024 Payment Weight” and “Final CY 2024 Payment Rate” in Addendum BB to separately paid ancillary procedures that are not paid at the PFS-equivalent rate.

We inadvertently assigned payment indicator “J7”—OPPS pass-through device paid separately when provided integral to a surgical procedure on ASC list; payment contractor-priced—to both HCPCS codes C1831 (Interbody cage, anterior, lateral or posterior, personalized (implantable)) and C1604 (Graft, transmural transvenous arterial bypass (implantable), with all delivery system components) as both these devices are approved OPPS pass-through devices for CY 2024. However, these devices are not separately payable under the ASC payment system for CY 2024. Accordingly, we are correcting these errors in Addendum BB by deleting “J7” in the column titled “Final CY 2024 Payment Indicator” and replacing it with “N1”—Packaged service/item; no separate payment made for both HCPCS codes C1831 and C1604.

The correction to apply the trim to APC 5061 and the resulting change to the OPPS weight scalar and OPPS payment rates, necessitate a revision to the CY 2024 ASC weight scalar, ASC relative payment weights, and ASC payment rates and the device offset amounts/device portions for device-intensive procedures because device offset amounts are held at the OPPS rate ( i.e., the OPPS payment rate multiplied by the device offset percentage) for device-intensive procedures. Further, the correction to the ASC weight scalar necessitates a correction to ASC payment rates, which requires a correction to the device offset amounts/device portions for non device-intensive procedures because the device offset amounts are held at the ASC rate ( i.e., the ASC payment rate multiplied by the device offset percentage) for these procedures.

We inadvertently omitted CPT code 0810T (Subretinal injection of a pharmacologic agent, including vitrectomy and 1 or more retinotomies) from Addendum FF. As we explained in pages 81617 through 81618 of the CY 2024 OPPS/ASC final rule with comment period, we finalized our proposal to delete HCPCS code C9770 and reassign CPT code 0810T to APC 1563. We are correcting this error by adding CPT code 0810T to Addendum FF.

We inadvertently created HCPCS code C7561 (Debridement, bone (includes epidermis, dermis, subcutaneous tissue, muscle and/or fascia, if performed); first 20 sq cm or less with manual preparation and insertion of drug-delivery device(s), deep ( e.g., subfascial) to describe the code pair combination of CPT code 11044 (Debridement, bone (includes epidermis, dermis, subcutaneous tissue, muscle and/or fascia, if performed); first 20 sq cm or less) and CPT code 20700 (Manual preparation and insertion of drug-delivery device(s), deep ( e.g., subfascial) (list separately in addition to code for primary procedure). This code pair currently exists as HCPCS code C7500 (Debridement, bone including epidermis, dermis, subcutaneous tissue, muscle and/or fascia, if performed, first 20 sq cm or less with manual preparation and insertion of deep ( e.g., subfacial) drug-delivery device(s)). Since this code pair currently is already reflected in C7500, this code pair does not require a new HCPCS code. We are correcting this error by deleting HCPCS code C7561 and adding HCPCS code C7500.

On page 81922 of the CY 2024 OPPS/ASC final rule with comment period, we stated we would finalize a device-intensive assignment with the default device offset percentage of 31 percent to HCPCS code C9734 (Focused ultrasound ablation/therapeutic intervention, other than uterine leiomyomata, with magnetic resonance (mr) guidance) for CY 2024; however, we inadvertently assigned a payment indicator of “G2”—Non office-based surgical procedure added in CY 2008 or later; payment based on OPPS relative payment weight—to HCPCS code C9734 in Addendum FF. Therefore, we are correcting the payment indicator in the column titled “Final CY 2024 Payment Indicator” for C9734 to “J8”—device-intensive procedure; paid at adjusted rate. We are also correcting the device offset percentage in the column titled “Final CY 2024 Device Offset Percentage” to 31 percent, and the device offset amount in the column titled “Final CY 2024 Device Offset Amount/Device Portion” to $3,701.33.

We inadvertently provided incorrect device offset amounts for CPT codes 0627T (Percutaneous injection of allogeneic cellular and/or tissue-based product, intervertebral disc, unilateral or bilateral injection, with fluoroscopic guidance, lumbar; first level); 0671T (Insertion of anterior segment aqueous drainage device into the trabecular meshwork, without external reservoir, and without concomitant cataract removal, one or more); 31295 (Nasal/sinus endoscopy, surgical, with dilation ( e.g., balloon dilation); maxillary sinus ostium, transnasal or via canine fossa); 58356 (Endometrial cryoablation with ultrasonic guidance, including endometrial curettage, when performed); 66989 (Extracapsular cataract removal with insertion of intraocular lens prosthesis (1-stage procedure), manual or mechanical technique ( e.g., irrigation and aspiration or phacoemulsification), complex, requiring devices or techniques not generally used in routine cataract surgery ( e.g., iris expansion device, suture support for intraocular lens, or primary posterior capsulorrhexis) or performed on patients in the amblyogenic developmental stage; with insertion of intraocular ( e.g., trabecular meshwork, supraciliary, suprachoroidal) anterior segment aqueous drainage device, without extraocular reservoir, internal approach, one or more); and 66991 (Extracapsular cataract removal with insertion of intraocular lens prosthesis (1 stage procedure), manual or mechanical technique ( e.g., irrigation and aspiration or phacoemulsification); with insertion of intraocular ( e.g., trabecular meshwork, supraciliary, suprachoroidal) anterior segment aqueous drainage device, without extraocular reservoir, internal approach, one or more) and HCPCS codes C9757 (Laminotomy (hemilaminectomy), with decompression of nerve root(s), including partial facetectomy, foraminotomy and excision of herniated intervertebral disc, and repair of annular defect with implantation of bone anchored annular closure device, including annular defect measurement, alignment and sizing assessment, and image guidance; 1 interspace, lumbar) and C9781 (Arthroscopy, shoulder, surgical; with implantation of subacromial spacer ( e.g., balloon), includes debridement ( e.g., limited or extensive), subacromial decompression, acromioplasty, and biceps tenodesis when performed).

On page 81921 of the CY 2024 OPPS/ASC final rule with comment period, we stated we are finalizing our proposed device offset percentages for these codes and displayed the final device offset percentages in Addendum FF to CY 2024 OPPS/ASC final rule with comment period. However, the device offset percentages in the addendum do not reflect these finalized device offset amounts. Therefore, we are correcting the device offset percentage in the column titled “Final CY 2024 Device Offset Percentage,” and we are correcting the device offset amount in the column titled “Final CY 2024 Device Offset Amount/Device Portion.” Further, for CPT code 58356, the corrected device offset percentage is above our device-intensive threshold and we are therefore assigning device-intensive status to CPT code 58356. In the column titled “CY 2024 Payment Indicator,” for CPT code 58356, we are replacing payment indicator “G2” with payment indicator “J8”—Device-intensive procedure; paid at adjusted rate.

To view the corrected final CY 2024 ASC payment indicators, payment weights, payment rates, and multiple procedure discounting indicators for Addenda AA, BB, and FF that resulted from these technical corrections, we refer readers to the Addenda and supporting files on the CMS website at: https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/ASCPayment/ASC-Regulations-and-Notices.html. Select “CMS-1786-CN” from the list of regulations. All corrected ASC addenda for this correcting document are contained in the zipped folder entitled “Addendum AA, BB, and FF” at the bottom of the page for CMS-1786-CN.

Under 5 U.S.C. 553(b) of the Administrative Procedure Act (APA), the agency is required to publish a notice of the proposed rulemaking in the Federal Register before the provisions of a rule take effect. Similarly, section 1871(b)(1) of the Act requires the Secretary to provide for notice of the proposed rulemaking in the Federal Register and provide a period of not less than 60 days for public comment. In addition, section 553(d) of the APA, and section 1871(e)(1)(B)(i) of the Act mandate a 30-day delay in effective date after issuance or publication of a rule. Sections 553(b)(B) and 553(d)(3) of the APA provide for exceptions from the notice and comment and delay in effective date APA requirements; in cases in which these exceptions apply, sections 1871(b)(2)(C) and 1871(e)(1)(B)(ii) of the Act provide exceptions from the notice and 60-day comment period and delay in effective date requirements of the Act as well. Section 553(b)(B) of the APA and section 1871(b)(2)(C) of the Act authorize an agency to dispense with normal rulemaking requirements for good cause if the agency makes a finding that the notice and comment process are impracticable, unnecessary, or contrary to the public interest. In addition, both section 553(d)(3) of the APA and section 1871(e)(1)(B)(ii) of the Act allow the agency to avoid the 30-day delay in effective date where such delay is contrary to the public interest and an agency includes a statement of support. We believe that this correction does not constitute a rule that would be subject to the notice and comment or delayed effective date requirements. This correcting document corrects technical and typographical errors in the preamble, addenda, payment rates, and tables included or referenced in the CY 2024 OPPS/ASC final rule with comment period but does not make substantive changes to the policies or payment methodologies that were adopted in the CY 2024 OPPS/ASC final rule with comment period. As a result, this correction is intended to ensure that the information in the CY 2024 OPPS/ASC final rule with comment period accurately reflects the policies adopted in that document.

In addition, even if this were a rule to which the notice and comment procedures and delayed effective date requirements applied, we find that there is good cause to waive such requirements. Undertaking further notice and comment procedures to incorporate the corrections in this document into the final rule with comment period or delaying the effective date would be contrary to the public interest because it is in the public's interest for providers to receive appropriate payments in as timely a manner as possible, and to ensure that the CY 2024 OPPS/ASC final rule with comment period reflects our policies. Furthermore, such procedures would be unnecessary, as we are not altering our payment methodologies or policies, but rather, we are simply correctly implementing the policies that we previously proposed, requested comment on, and subsequently finalized. This correcting document is intended solely to ensure that the CY 2024 OPPS/ASC final rule with comment period accurately reflects these payment methodologies and policies. For these reasons, we believe we have good cause to waive the notice and comment and delayed effective date requirements.

Moreover, even if these corrections were considered to be retroactive rulemaking, they would be authorized under section 1871(e)(1)(A)(ii) of the Act, which permits the Secretary to issue a rule for the Medicare program with retroactive effect if the failure to do so would be contrary to the public interest. As we have explained previously, we believe it would be contrary to the public interest not to implement the corrections in this final rule correction because it is in the public's interest for providers to receive appropriate payments in as timely a manner as possible, and to ensure that the CY 2024 OPPS/ASC final rule with comment period accurately reflects our policies.

In FR Doc. 2023-24293 of November 22, 2023 (88 FR 81540), we are making the following corrections:

1. On page 81545, third column, first partial bulleted paragraph, lines 44 and 45, the phrase “(5) a requirement that hospitals to include a .txt file” is corrected to read “(5) a requirement that hospitals include a .txt file”.

2. On page 81546,

a. Second column, last partial paragraph, line 12, the figure “9.2” is corrected to read “9.1”.

b. Third column, first full paragraph, line 4, the figure “0.0” is corrected to read “0.1”.

3. On page 81547, first column, the paragraph under “f. Impacts of Hospital Price Transparency” is corrected in its entirety to read, “The policies we are finalizing to enhance automated access to hospital MRFs and aggregation and use of MRF data are estimated to increase burden on hospitals, including a one-time mean of $10,587.10 per hospital, and a total national cost of $75,147,236 ($10,587.10 × 7,098). The cost estimate reflects estimated costs ranging from $4,833 and $15,881 per hospital, and a total national cost ranging from $34,305,344 to $112,720,854. As discussed in detail in section XXVI of this final rule with comment period, we believe that the benefits to the public (and to hospitals themselves) outweigh the burden imposed on hospitals.”.

4. On page 81578, first column, first full paragraph, line 5, the figure “1.4429” is corrected to read “1.4414”.

5. On page 81592, third column,

a. Last paragraph under the heading “Step 7”,

(1) Line 17, the figure “$671.05” is corrected to read “$670.36”.

(2) Line 21, the figure $658.03”is corrected to read “$657.36”.

b. Last paragraph,

(1) Line 3, the figure “$402.63” is corrected to read “$402.22”.

(2) Line 4, the figure “$671.05” is corrected to read “$670.36”.

(3) Line 6, the figure “$394.82” is corrected to read “$394.42”.

(4) Line 7, the figure “$658.03” is corrected to read “$657.36”.

6. On page 81593,

a. First column, second paragraph, line 4, the equation “$546.05 ($402.63 *1.3562)” is corrected to read “$545.49 ($402.22 * 1.3562)”.

b. Second column,

(1) First partial paragraph, line 1, the figures “$535.45 ($394.82” are corrected to read “$534.91 ($394.42”.

(2) First full paragraph,

(a) Line 3, the figure “$268.42” is corrected to read “$268.14”.

(b) Line 4, the figure “$671.05” is corrected to read “$670.36”.

(c) Line 6, the figure “$263.21” is corrected to read “$262.94”.

(d) Line 7, the figure “$658.03” is corrected to read “$657.36”.

c. Third column, first full paragraph,

(1) Line 4, the figures “$814.47 ($546.05” are corrected to read “$813.63 ($545.49”.

(2) Line 5, the figure “$268.42” is corrected to read “$268.14”.

(3) Line 7, the figures “$798.66 ($535.45” are corrected to read $797.85 ($534.91”.

(4) Line 8, the figure “$263.21” is corrected to read “$262.94”.

(d) The table titled “Table 7: Final Full National Unadjusted Payment Rate and Final Reduced National Adjusted Payment Rate,” which appears near the top of the page, is corrected to read as follows:

This final rule implements HHS' administration of priorities and allocations actions with respect to health resources and establishes the Health Resources Priorities and Allocations System (HRPAS). The HRPAS covers health resources pursuant to the authority under section 101(a) of the Defense Production Act (DPA) of 1950 as delegated to the Secretary of HHS (Secretary) by Executive Order (E.O.) 13603. On September 26, 2022, the Secretary delegated to the Assistant Secretary for Preparedness and Response (the ASPR) within the Administration for Strategic Preparedness and Response (ASPR), the authority under section 201 of E.O. 13603 to exercise priorities authority under section 101 of the DPA. This delegation authorized the ASPR, on behalf of the Secretary, to approve DO—[-[M1-M9] priority rating requests for health resources that promote the national defense. This delegation excludes the authority to approve all priorities provisions for health resources that require DX—[-[M1-M9] priority ratings. The Secretary retains all other authorities delegated by the President in E.O. 13603.

The HRPAS has two principal components: priorities and allocations. Under the priorities' component, the Secretary is authorized to place priority ratings on contracts or orders for health resources to support programs which have been determined by the Department of Defense, Department of Energy, or Department of Homeland Security as necessary or appropriate to promote the national defense in accordance with section 202 of E.O. 13603. Through the HRPAS rule, HHS may also respond to requests to place priority ratings on contracts or orders (requiring priority performance of contracts or orders) for health resources, as specified in the DPA, if the necessity arises. Under the priorities' component, certain contracts or orders between the government and private parties or between private parties for the production or delivery of health resources are required to be prioritized over other contracts or orders to facilitate expedited production or delivery in promotion of the U.S. national defense. The Secretary retains the authority for allocations. Under the allocations' component, materials, services, and facilities may be allocated to promote the national defense. Such requests must be determined as necessary or appropriate to promote the national defense in accordance with section 202 of E.O. 13603. For both components, the term “national defense” is defined in section 801(j) of E.O. 13603 as “programs for military and energy production or construction, military or critical infrastructure assistance to any foreign nation, homeland security, stockpiling, space, and any directly related activity.” The term also includes emergency preparedness activities conducted pursuant to title VI of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) and critical infrastructure protection and restoration. See E.O. 13603, section 801(j). Other authorities delegated to the Secretary in E.O. 13603, but not covered by this regulation may be re-delegated by the Secretary.

HHS published an interim final rule in the Federal Register at 80 FR 42408 on July 17, 2015, to comply with the Part II—Priorities and Allocations, Sec 201(b) of E.O. 13603, dated March 16, 2012, and section 101(d) of the DPA, 50 U.S.C. 4511(d), and received no public comments. Based on the signficant amount of time between the publication of the interim final rule in 2015, HHS published, on August 16, 2023, a NPRM in the Federal Register at 88 FR 55613 to allow for comments based on HHS utilizing DPA authorities and the HRPAS to respond to COVID-19 Public Health Emergency (PHE) from 2020 to 2023 and the infant formula shortage in 2022.

HRPAS is a program established in accordance with the DPA and E.O. 13603 that supports national defense needs (for health resources), including emergency preparedness initiatives, by addressing essential civilian needs through the placing of priority ratings on contracts and orders for items and services or allocating resources, as necessary. Although a specific Presidential disaster declaration is not required, the ability to prioritize or allocate items or services requires a determination be made in accordance with section 202 of E.O. 13603, (except as provided in section 201(e) for use of the allocations authority) that the program or programs are necessary or appropriate to promote national defense, including emergency preparedness. The HRPAS outlines several conditions that must be met in order for HHS to undertake an allocation order, which include a finding, when necessary, under section 101(b) of the DPA that such a material is a scarce and critical material essential to the national defense and that the requirements of the national defense for such material cannot otherwise be met without creating a significant dislocation of the normal distribution of such material in the civilian market to such a degree as to create appreciable hardship. The President must approve the finding, in accordance with section 201(e) of E.O. 13603, before the Secretary may use the allocation authority. Under section 702(14) of the DPA (50 U.S.C. 4552(14)), the term “national defense” includes emergency preparedness activities conducted pursuant to the Stafford Act, and critical infrastructure protection and restoration. Authority for priorities and allocations is specified in the DPA and further defined in E.O. 13603, “National Defense Resources Preparedness,” dated March 16, 2012. E.O. 13603 replaced E.O. 12919 and further defined jurisdictional areas and national defense preparedness roles and responsibilities for specific agencies. E.O. 13603 did not change the intent of the DPA as it applies to HHS' functions in national defense, including emergency preparedness.

E.O. 13603 authorizes jurisdictional areas for each agency delegated title I authority under the DPA that is involved in national defense, including emergency preparedness. HHS has jurisdiction for items that fall under the category of health resources which is defined in E.O. 13603 as “drugs, biological products, medical devices, materials, facilities, health supplies, services and equipment required to diagnose, mitigate, or prevent the impairment of, improve, treat, cure, or restore the physical or mental health conditions of the population.” HHS cannot use its DPA authority for items or services not in its jurisdiction. Those entities in need of items or services that do not fall under the jurisdiction of HHS should request priorities assistance from the applicable resource department. HHS will direct the requesters to the appropriate resource agency if the request comes to HHS. HHS intends to work with other resource agencies to address instances where HHS does not have jurisdiction—or where jurisdiction may be overlapping or ambiguous—for items necessary to complete the order. HHS intends to work with the other resource agencies to request prioritization of contracts or orders for other items or services necessary for use in support of programs approved for use by HHS (see next section).

On November 2, 2023, the Department of Homeland Security approved four programs to be eligible for priorities and allocations support in accordance with Section 202 of Executive Order 13603. These programs are listed in Appendix 1.

The Defense Production Act Reauthorization (DPAR) of 2009 required that HHS, and all other agencies that previously have been delegated priorities and allocations authority under E.O. 13603, publish regulations providing standards and procedures for prioritization of contracts and orders and for allocation of materials, services, and facilities to promote the national defense under both emergency and nonemergency conditions. HHS' regulation, along with regulations promulgated by other agencies, are part of the Federal Priorities and Allocations System (FPAS).

On October 1, 2018, Congress amended the DPA through the John S. McCain National Defense Authorization Act (Pub. L. 115-232) which extended non-permanent provisions through September 30, 2025. Section 101(d) of the DPA, as amended, directs all agencies to which the President has delegated priorities and allocations authority under E.O. 13603 to publish final rules establishing standards and procedures by which that authority will be used to promote the national defense in both emergency and non-emergency situations. The DPAR also required all such agencies to consult with the heads of other Federal agencies as appropriate and to the extent practicable to develop a consistent and unified FPAS. This rulemaking is one of several rules published to implement section 101 of the DPA. The rules of the agencies with such authorities, which are the Departments of Commerce, Energy, Transportation, Health and Human Services, Homeland Security, Defense, and Agriculture, comprise the FPAS. HHS is publishing this NPRM rule in compliance with section 101(d) of the DPA. HHS' HRPAS provisions are consistent with the FPAS regulations issued by other agencies to the extent practicable.

The HRPAS, as part of the FPAS, has two principal components: priorities and allocations. Under the priorities component, contracts and orders between the government and private parties or between private parties for the production or delivery of health resources are required to be given priority over other contracts to facilitate expedited production and delivery in promotion of the U.S. national defense. Under the allocations component, materials, services, and facilities may be allocated to promote the national defense. For both components, the term “national defense” is defined broadly and includes emergency preparedness activities conducted pursuant to title VI of the Stafford Act and critical infrastructure protection and restoration priorities authorities. Priorities, allocations, and other authorities delegated to the Secretary in E.O. 13603, but not covered by this regulation may be re-delegated by the Secretary. The Secretary delegated the authority for DO priority ratings to the ASPR. The Secretary retains the authority for DX priority ratings and for allocations.

a. HHS' interim final rule had a 60-day comment period that ended on September 15, 2015. HHS received no comments on the interim Final Rule. HHS has made minor revisions to its interim final rule based on the use of these authorities to response to the COVID-19 PHE, the infant formula shortage, and deliberations with interagency partners. These changes were reflected in the NPRM (88 FR 55613: 08/16/2023).

(1) Section 101.1, Purpose, was revised to add livestock resources, veterinary resources, and plant health resources.

(2) Section 101.20, Definitions, was revised to include a new definition of priority rating and program identification symbol and add a definition of “working day.”

(3) Section 101.30, Delegation of Authority, was revised to include the delegation of DO priority rating authority of the DPA, and section 201 of E.O. 13603, from the Secretary of HHS to the Assistant Secretary for Preparedness and Response (the ASPR).

(4) Section 101.63, Letters and Memoranda of Understanding was revised to delete references to Memoranda.

b. Analysis of Other Technical Edits: Several editorial changes were made to the rule and are summarized below.

(a) Section 101.33. The acceptance and rejection times for rated orders are revised. The preamble section of the interim final rule was inconsistent with the provisions in §§ 101.32 and 101.33 with respect to the time limits for acceptance and rejection of rated orders. Most rated orders will continue to require acceptance or rejection within 10 or 15 working days depending on the type of rating. Rated orders placed in support of emergency preparedness requirements may require acceptance or rejection within a shorter timeframe that is specified in the rated order. The minimum times for acceptance or rejection that such orders may specify are six business (6) hours for emergencies that have occurred, or 12 business hours if needed to prepare for an imminent hazard. Also, “time limit in” has been changed to “minimum times,” which is the correct terminology.

(b) Section 101.33(d)(2). Customer notification requirements require persons who have accepted a rated order to give notice if performance will be delayed. The time limit to provide written confirmation of a verbal notice is five (working) days; the time limit is revised to one (1) working day to provide written confirmation of a verbal notice. HHS believes that the nature of rated orders supporting national defense requirements justifies expeditious communications and that once a verbal notice of delayed performance has been given, putting that notice into writing should not take more than one working day.

Sections 101.51 and 101.51(a) are revised to conform with language in the other FPAS regulations and comply with the requirement in section 101(d)(2) of the DPA for the regulations to be consistent and unified.

Section 101.53 is revised 101.53 to change “is requiring” to “as established.” The rationale for this change is that “is requiring” implies that the allocations process is a constant obligation.

(a). Section 101.54(c) is revised to include a new element to be included in an allocation order that gives constructive notice through publication in the Federal Register .

(a) Section 101.63. “Memorandums of Understanding” (MOUs) are universally known in the Federal Government as an agreement between agencies/parties, sometimes completed under the Economy Act, and the use of MOUs in implementing priorities authorities could cause confusion. Therefore, the terms “Memorandum of Understanding” or “Memoranda of Understanding” in § 101.63 and other sections in the interim rule are deleted.

Section 101.1 revises the sentence regarding guidance and procedures for use of DPA authorities to include livestock, veterinary resources, plant health resources, and all forms of energy. In addition, HHS deleted reference to 32 CFR part 555, referring to priorities and allocations for water resources.

Section 101.3 is revised to delete “deployment and sustainment of military forces,” to track with section 702(14) of the DPA.

(1) Revise definition of “National defense” to delete “health” and add “energy” to track definition of “national defense” in section 702(14) of the DPA.

(2) Delete sentence stating, “Natural resources such as oil and gas,” from the definition of “Materials.”

(3) Revise the definition of “person.”

(4) Revise the definition of “priority rating.”

(5) Add a definition for “Working day.”

Revised to change “priority rating activities” to “priorities authorities” to track E.O. 13603.

(1) Paragraph (a)(1), Levels of priority is revised to change “Federal” to “Health Resources” because agency regulations establish priority levels.

(2) Paragraph (d)(2)(i). The preamble discussion of § 101.33 is revised to correct the 2-day time frame for acceptance or rejection of rated orders for emergency preparedness to be consistent with §§ 101.32 and 101.33.

Paragraph (e). The discussion of § 101.33 of the preamble of the interim final rule is inconsistent with the 2-working daytime frame for acceptance or rejection of rated orders in § 101.33. The preamble is revised to correct this inconsistency.

(1) Paragraph (a)(4) “Facilities needed to produce rated orders, and” is deleted because “facilities” are considered an industrial resource and not eligible for priorities and allocations under the HHS-administered HRPAS regulation.

(1) Paragraph (b)(1). Revising paragraph (b)(1) to insert “livestock resources, veterinary resources, and plant health resources,” to track E.O. 13603.

(2) Paragraph (b)(2). Revising paragraph (b)(2) to add “All forms of energy” in lieu of “Energy supplies,” to track E.O. 13603.

(3) Paragraph (b)(5). (3) Paragraph (b)(5). Adding a paragraph clarifying Department of Commerce's resource jurisdiction over “industrial resources.”

(4) Paragraph (b)(6). Changing former paragraph (b)(5) (now paragraph (b)(6)) to clarify that HRPAS priorities and allocations authority may not be applied to communication services as the “resource judication.”

Paragraph (a). Revised the introductory sentence of paragraph (a). The rationale for this change is once a rating is authorized, in most instances, no further action is required by HHS.

Paragraph (b). Revising paragraph (b) to replace “Memoranda” of Understanding with “Letters.”

Paragraph (d). Deleting paragraph (d) relating to an Allocation Directive, as it was deleted in the Department of Commerce's final rule.

Revising § 101.63 to delete “and Memoranda” in paragraphs (a) and (b).

Paragraph (a). Deleted language specific to the Selective Service Act and related statutes because HHS has not been delegated authority under the Selective Service Act, and the sentence, as well as the reference to the Selective Service Act earlier in this paragraph, have been deleted.

Based on the signficant amount of time since the publication of the interim final rule in 2015, HHS published, on August 16, 2023, a NPRM in the Federal Register (88 FR 55613) to allow for comments based on HHS utilizing DPA and HRPAS authorities in response to COVID-19 and the infant formula shortage in 2022. The comment period for the NPRM closed on September 15, 2023. During the 30-day comment period, HHS received two comments on the HRPAS NPRM. One comment, from a private citizen, was generally supportive of the regulation and primarily requested clarification and identified minor technical errors that have been addressed in this final rule. The second comment was from a coalition advocating on behalf of their stakeholders. This second comment was not specific to the HRPAS or DPA authorities and no edits were required to the HRPAS final rule.

HHS considered all comments received on the NPRM and, based on the comments received, HHS has made minor technical changes from the NPRM (88 FR 55613) to include the following revisions in this final rule:

• In IV of the Preamble, § 101.54(e) is revised to reference § 101.54(c)

• In IV of the Preamble, “State, local, or Tribal governments” is revised to reference “State, Local, Tribal, or Territorial governments.”

• In IV of the Preamble, “commodities of products” is revised to read “commodities or products” and § 101.20 was revised, consistent with this change.

• Section 101.32(a)(4) is revised to reference § 101.32(a)(4)(a) and (b).

• Section 101.33(c) is revised to reference § 101.32(a)(4)(b).

• Section 101.37(d)(1)(ii) is revised to reference § 101.32(a)(4).

• Section 101.43 is revised to delete reference to “the Department of Commerce for industrial resources.”

(1) Executive Orders 12866 (“Regulatory Planning and Review”), 13563 (“Improving Regulation and Regulatory Review”), and 14094 (“Modernizing Regulatory Review) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Under E.O. 12866, “significant” regulatory actions are subject to review by OMB. E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. E.O. 14094 amends section 3(f) of Executive Order 12866 (Regulatory Planning and Review). This final rule has been drafted and reviewed in accordance with these Executive Orders. This rule has been designated a “significant regulatory action” by the Office of Management and Budget's (OMB) Office of Information and Regulatory Affairs, under section 3(f) of E.O. 12866.

(2) This final rule adopts the interim final rule (IFR) that established standards and procedures by which HHS may require certain contracts or orders that promote the national defense be given priority over other contracts or orders and setting new standards and procedures by which HHS may allocate materials, services, and facilities to promote the national defense under emergency and non-emergency conditions pursuant to section 101 of the DPA of 1950, as amended. Accordingly, relative to a post-IFR baseline, this final rule has limited economic impact.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) requires preparation of an initial regulatory flexibility analysis for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. HHS reviewed this final rule under the provisions of the Regulatory Flexibility Act and has determined that this rulemaking, if promulgated, will not have a significant impact on a substantial number of small entities.

(a) Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of this final rule on small entities, a small business, as described in the Small Business Administration's Table of Small Business Size Standards Matched to North American Industry Classification System Codes (January 2022 Edition), has a maximum annual revenue of $33.5 million and a maximum of 1,500 employees (for some business categories, these numbers are lower). A small governmental jurisdiction is a government of a city, town, school district or special district with a population of less than 50,000. A small organization is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

(b) This rulemaking sets criteria under which HHS (or agencies to which HHS delegates HHS' DPA authority to issue rated orders) will authorize prioritization of certain contracts or orders for health resources as well as criteria under which HHS will issue orders allocating materials, services, and facilities. Because the rulemaking affects specific commercial transactions, HHS believes that small non-profit organizations and small governmental jurisdictions are unlikely to be directly affected by this rulemaking.

(c) Prior to the COVID-19 PHE, HHS had minimally exercised its prioritization authority for contracts and orders and had not exercised its allocation authorities. To date, HHS has exercised title I priorities authorities approximately 70 times in responding to the COVID-19 PHE to prioritize contracts thus ensuring rapid industrial mobilization for critical health resources ( e.g., N95 facemasks, vaccines, therapeutics, and diagnostics) to meet urgent emergency preparedness and response requirements. In response to the initial wave of the COVID-19 pandemic, HHS leveraged its allocations authority, in conjunction with a DX rated order, to re-distribute N-95 facemasks that were seized by the U.S. Customs and Border Protection. Several health resource materials have been identified as essential in responding to the COVID-19 pandemic and these items, such as personal protective equipment (PPE), ventilators, medical countermeasures, and ancillary supplies are in high demand. Therefore, a priority rating was necessary to provide the quantities of these health resources within a specified timeframe to respond to the COVID-19 pandemic. Additionally, in response to the infant formula shortage, HHS issued three priority rated orders to help ensure timely delivery of key ingredients to infant formula manufacturers.

(a) The final rule has two principal components: prioritization and allocation. Under prioritization, HHS, or its Delegate Agency, designates certain orders as one of two possible priority levels. Once so designated, such orders are referred to as “rated orders.” The recipient of a rated order must give it priority over an unrated order or an order with a lower priority rating as necessary to meet the delivery requirement of the rated order. A recipient of a rated order must place orders at the same priority level with suppliers and subcontractors for supplies and services necessary to fulfill the recipient's rated order. The suppliers and subcontractors must treat the request from the rated order recipient as a rated order with the same priority level as the original rated order. The rulemaking does not require recipients to fulfill rated orders if the price or terms of sale are not consistent with the price or terms of sale of similar non-rated orders. The rulemaking provides protection against claims for actions taken in, or inactions required for, compliance with the rulemaking.

(b) Although rated orders could require a firm to fill one order prior to filling another, they will not necessarily require a reduction in the total volume of orders. The regulations also do not require the recipient of a rated order to reduce prices or provide rated orders with more favorable terms than a similar non-rated order. Under these circumstances, the economic effects on the rated order recipient of substituting one order for another are likely to be mutually offsetting, resulting in no net economic impact.

(c) Allocations could be used to control the general distribution of materials or services in the civilian market. Specific allocation actions that HHS might take are as follows:

1. Set-aside: an official action that requires a person to reserve materials, services, or facilities capacity in anticipation of receipt of rated orders.

2. Directive: an official action that requires a person to take or refrain from taking certain actions in accordance with its provisions. A directive can require a person to stop or reduce production of an item; prohibit the use of selected materials, services, or facilities; or divert the use of materials, services, or facilities from one purpose to another.

3. Allotment: an official action that specifies the maximum quantity of a material, service, or facility authorized for a specific use to promote the national defense.

(d) In response to the COVID-19 PHE, HHS leveraged its allocations authority, in conjunction with a DX rated order to re-distribute N-95 facemasks that were seized by the U.S. Customs and Border Protection. As required by section 101(a)(2) of the DPA and by section 201(a)(3) of E.O. 13603, HHS may implement allocations only if the materials, services, and facilities are deemed necessary or appropriate to promote the national defense. “National defense” covers programs for military and energy production or construction, military or critical infrastructure assistance to any foreign nation, homeland security, stockpiling, space, and any related activity. Such terms include emergency preparedness activities conducted pursuant to title VI of the Stafford Act and critical infrastructure protection and restoration.

(e) Any allocation actions taken by HHS must assure that small business concerns shall be accorded, to the extent practicable, a fair share of the materials or services covered by the allocation action, in proportion to the share received by small business concerns under normal conditions, giving such special consideration as may be possible to emerging business concerns. 50 U.S.C. 4551(e).

(f) Although HHS cannot precisely determine the number of small entities that will be affected by this rulemaking, HHS believes that the overall impact on such entities will not be significant. In most instances, rated contracts or orders will be fulfilled in addition to other (unrated) contracts or orders and, in some instances might actually increase the total amount of business of the firm that receives a rated contract or order.

(g) Because allocations can be imposed only after a finding required under section 101(b) of the DPA, and approved by the President in accordance with section 201(e) of E.O. 13603, that such material is a scarce and critical material essential to the national defense and that the requirements of the national defense for such material cannot otherwise be met without creating a significant dislocation of the normal distribution of such material in the civilian market to such a degree as to create appreciable hardship, and because HHS has only used its allocations authority one time in response to the initial wave of COVID-19, one can expect allocations will be ordered only in rare and unique circumstances. Any allocation actions would also have to comply with section 701(e) of DPA (50 U.S.C. 4551(e)), which provides that small business concerns be accorded, to the extent practicable, a fair share of the material, including services, in proportion to the share received by such business concerns under normal conditions, giving such special consideration as may be possible to emerging business concerns.

Therefore, HHS believes that the requirement for a finding under section 101(b) of the DPA, and approved by the President in accordance with section 201(e) of E.O. 13603, that such a material is a scarce and critical material essential to the national defense and that the requirements of the national defense for such material cannot otherwise be met without creating a significant dislocation of the normal distribution of such material in the civilian market to such a degree as to create appreciable hardship and the provisions of section 701 of the DPA indicate that any impact on small business will not be significant.

(h) For the reasons set forth above, the Secretary of HHS certifies that this final rule will not have a significant economic impact on a substantial number of small entities.

The purposes of the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq., include minimizing the paperwork burden on affected entities. The PRA requires certain actions before an agency can adopt or revise a collection of information, including publishing for public comment a summary of the collection of information and a brief description of the need for and proposed use of the information.

A Federal agency may not conduct or sponsor a collection of information unless it is approved by OMB under the PRA, and it displays a currently valid OMB control number. The public is also not required to respond to a collection of information unless it displays a currently valid OMB control number. In addition, notwithstanding any other provisions of law, no person will be subject to penalty for failing to comply with a collection of information if the collection of information does not display a currently valid OMB control number (44 U.S.C. 3512).

In accordance with the PRA, the Department has submitted one new Information Collection Request (ICR) to OMB in concert with the publishing of this final rule.

HHS reviewed this proposed rule pursuant to E.O. 13132, “Federalism,” 64 FR 43255 (August 4, 1999), which imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. HHS determined that the rulemaking will not have a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of Government.

Title II of the Unfunded Mandate Reform Act of 1995 (UMRA, Pub. L. 104-4) requires Federal agencies to assess the effects of their regulatory actions on State, Local, Tribal, or Territorial governments or the private sector. Agencies generally must prepare a written statement, including a cost benefit analysis, for proposed and final rules with Federal mandates that may result in expenditures of $100 million or more in any one year for State, Local, Tribal, or Territorial governments, in the aggregate, or to the private sector. This rule contains no Federal mandates as defined by title II of UMRA for State, Local, Tribal, or Territorial governments or for the private sector; therefore, this rule is not subject to the requirements of sections 202 and 205 of Unfunded Mandate Reform Act.

The Secretary of Health and Human Services has approved publication of this final rule.

On December 12, 2017 the NEA issued a final rule entitled “Federal Civil Penalties Adjustments”  1 which finalized the NEA's June 15, 2017 interim final rule entitled “Implementing the Federal Civil Penalties Adjustment Act Improvements Act”, 2 implementing the 2015 Act (section 701 of Pub. L. 114-74), which amended the Inflation Adjustment Act (28 U.S.C. 2461 note) requiring catch-up and annual adjustments to the NEA's CMPs. The 2015 Act requires agencies make annual adjustments to its CMPs for inflation.

A CMP is defined in the Inflation Adjustment Act as any penalty, fine, or other sanction that is (1) for a specific monetary amount as provided by Federal law, or has a maximum amount provided for by Federal law; (2) assessed or enforced by an agency pursuant to Federal law; and (3) assessed or enforced pursuant to an administrative proceeding or a civil action in the Federal courts.

These annual inflation adjustments are based on the percentage change in the Consumer Price Index for all Urban Consumers (CPI-U) for the month of October preceding the date of the adjustment, relative to the October CPI-U in the year of the previous adjustment. The formula for the amount of a CMP inflation adjustment is prescribed by law, as explained in OMB Memorandum M-16-06 (February 24, 2016), and therefore the amount of the adjustment is not subject to the exercise of discretion by the Chairman of the National Endowment for the Arts (Chairman).

The Office of Management and Budget has issued guidance on implementing and calculating the 2024 adjustment under the 2015 Act. 3 Per this guidance, the CPI-U adjustment multiplier for this annual adjustment is 1.03241. In its prior rules, the NEA identified two CMPs, which require adjustment: the penalty for false statements under the PFCRA and the penalty for violations of the NEA's Restrictions on Lobbying. With this rule, the NEA is adjusting the amount of those CMPs accordingly.

The inflation adjustments contained in this rule shall apply to any violations assessed after January 15, 2024.

Two CMPs in NEA regulations require adjustment in accordance with the 2015 Act: (1) the penalty associated with the Program Fraud Civil Remedies Act (45 CFR 1149.9) and (2) the penalty associated with Restrictions on Lobbying (45 CFR 1158.400; 45 CFR part 1158, app. A).

The current maximum penalty under the PFCRA for false claims and statements is currently set at $13,507. The post-adjustment penalty or range is obtained by multiplying the pre-adjustment penalty or range by the percent change in the CPI-U over the relevant time period and rounding to the nearest dollar. Between October 2022 and October 2023, the CPI-U increased by a multiplier of 103.241%. Therefore, the new post-adjustment maximum penalty under the PFCRA for false statements is $13,507 × 1.03241 = $13,944.76 which rounds to $13,945. Therefore, the maximum penalty under the PFCRA for false claims and statements will be $13,945.

The penalty for violations of the Restrictions on Lobbying is currently set at a range of a minimum of $23,714 and a maximum of $237,268. The post-adjustment penalty or range is obtained by multiplying the pre-adjustment penalty or range by the percent change in the CPI-U over the relevant time period and rounding to the nearest dollar. Between October 2022 and October 2023, the CPI-U increased by a multiplier of 103.241%. Therefore, the new post-adjustment minimum penalty under the Restrictions on Lobbying is $23,714 × 1.03241 = $24,482.57074, which rounds to $24,483 and the maximum penalty under the Restrictions on Lobbying is $237,268 × 1.03241 = $244,957.86, which rounds to $244,958. Therefore, the range of penalties under the law on the Restrictions on Lobbying shall be between $24,483 and $244,958.

Section 553 of the Administrative Procedure Act requires agencies to provide an opportunity for notice and comment on rulemaking and also requires agencies to delay a rule's effective date for 30 days following the date of publication in the Federal Register unless an agency finds good cause to forgo these requirements. However, section 4(b)(2) of the 2015 Act requires agencies to adjust civil monetary penalties notwithstanding section 553 of the Administrative Procedure Act (APA) and publish annual inflation adjustments in the Federal Register . “This means that the public procedure the APA generally requires . . . is not required for agencies to issue regulations implementing the annual adjustment.” OMB Memorandum M-18-03.

Even if the 2015 Act did not except this final rule from section 553 of the APA, the NEA has good cause to dispense with notice and comment. Section 553(b)(B), authorizes agencies to dispense with notice and comment procedures for rulemaking if the agency finds good cause that notice and comment are impracticable, unnecessary, or contrary to public interest. The annual adjustments to civil penalties for inflation and the method of calculating those adjustments are established by section 5 of the 2015 Act, as amended, leaving no discretion for the NEA. Accordingly, public comment would be impracticable because the NEA would be unable to consider such comments in the rulemaking process.

Executive Order 12866 (E.O. 12866) established a process for review of rules by the Office of Information and Regulatory Affairs, which is within the Office of Management and Budget (OMB). Only “significant” proposed and final rules are subject to review under this Executive Order. “Significant,” as used in E.O. 12866, means “economically significant.” It refers to rules with (1) an impact on the economy of $100 million; or that (2) were inconsistent or interfered with an action taken or planned by another agency; (3) materially altered the budgetary impact of entitlements, grants, user fees, or loan programs; or (4) raised novel legal or policy issues.

This final rule would not be a significant policy change and OMB has not reviewed this final rule under E.O. 12866. The NEA has made the assessments required by E.O. 12866 and determined that this final rule: (1) will not have an effect of $100 million or more on the economy; (2) will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities; (3) will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (4) does not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients; and (5) does not raise novel legal or policy issues.

This final rule does not have federalism implications, as set forth in E.O. 13132. As used in this order, federalism implications mean “substantial direct effects on the States, on the relationship between the [N]ational [G]overnment and the States, or on the distribution of power and responsibilities among the various levels of government.” The NEA has determined that this final rule will not have federalism implications within the meaning of E.O. 13132.

This final rule meets the applicable standards set forth in section 3(a) and 3(b)(2) of E.O. 12988. Specifically, this final rule is written in clear language designed to help reduce litigation.

Under the criteria in E.O. 13175, the NEA has evaluated this final rule and determined that it would have no potential effects on Federally recognized Indian Tribes.

Under the criteria in E.O. 12630, this final rule does not have significant takings implications. Therefore, a takings implication assessment is not required.

This final rule will not have a significant adverse impact on a substantial number of small entities, including small businesses, small governmental jurisdictions, or certain small not-for-profit organizations.

This final rule will not impose any “information collection” requirements under the Paperwork Reduction Act. Under the Act, information collection means the obtaining or disclosure of facts or opinions by or for an agency by 10 or more nonfederal persons.

This final rule does not contain a Federal mandate that will 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 one year.

The final rule will not have a significant effect on the human environment.

This final rule would not be a major rule as defined in section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This final rule will not result in an annual effect on the economy of $100 million or more, a major increase in costs or prices, significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign based companies in domestic and export markets.

Section 206 of the E-Government Act requires agencies, to the extent practicable, to ensure that all information about that agency required to be published in the Federal Register is also published on a publicly accessible website. All information about the NEA required to be published in the Federal Register may be accessed at https://www.arts.gov. This Act also requires agencies to accept public comments on their rules “by electronic means.” See heading “Public Participation” for directions on electronic submission of public comments on this final rule.

Finally, the E-Government Act requires, to the extent practicable, that agencies ensure that a publicly accessible Federal Government website contains electronic dockets for rulemakings under the Administrative Procedure Act of 1946 (5 U.S.C. 551 et seq. ). Under this Act, an electronic docket consists of all submissions under section 553(c) of title 5, United States Code; and all other materials that by agency rule or practice are included in the rulemaking docket under section 553(c) of title 5, United States Code, whether or not submitted electronically. The website https://www.regulations.gov contains electronic dockets for the NEA's rulemakings under the Administrative Procedure Act of 1946.

Under this Act, the term “plain writing” means writing that is clear, concise, well-organized, and follows other best practices appropriate to the subject or field and intended audience. To ensure that this final rule has been written in plain and clear language so that it can be used and understood by the public, the NEA has modeled the language of this final rule on the Federal Plain Language Guidelines.

In accordance with Title 46 of the United States Code (U.S.C.), Chapter 93, 1 the Coast Guard regulates pilotage for oceangoing vessels on the Great Lakes and St. Lawrence Seaway—including setting the rates for pilotage services and adjusting them on an annual basis for the upcoming shipping season. The shipping season begins when the locks open in the St. Lawrence Seaway, which allows traffic access to and from the Atlantic Ocean. The opening of the locks varies annually, depending on waterway conditions, but is generally in March or April. The rates, which for the 2024 season range from $430 to $927 per pilot hour (depending on which of the specific 6 areas pilotage service is provided), are paid by shippers to the pilot associations. The three pilot associations, which are the exclusive U.S. source of registered pilots on the Great Lakes, use this revenue to cover operating expenses, maintain infrastructure, compensate apprentice and registered pilots, acquire and implement technological advances, train new personnel, and provide for continuing professional development. These rates are the foundation for safe, efficient, and reliable pilotage service to facilitate maritime commerce, protect the marine environment, and comply with National Transportation Safety Board recommendations regarding staffing and pilot fatigue.

In accordance with statutory and regulatory requirements, the Coast Guard employs the ratemaking methodology introduced in 2016  2 and last updated in 2022. 3 Our ratemaking methodology calculates the revenue needed for each pilotage association (operating expenses, compensation for the number of pilots, and anticipated inflation), and then divides that amount by the expected demand for pilotage services over the course of the coming year to produce an hourly rate. This is a 10-step methodology to calculate rates, which is explained in detail in section VI., Summary of the Ratemaking Methodology, in the preamble to this rule.

In this final rule, we conduct our annual review and interim adjustment to the base pilotage rates for 2024. The Coast Guard last conducted a full ratemaking in 2023, with the “Great Lakes Pilotage Rates—2023 Annual Ratemaking and Review of Methodology” final rule (hereafter the “2023 final rule”) (88 FR 12226, published February 27, 2023). 4 Per title 46 of the Code of Federal Regulations (CFR), section 404.100(b), via this final rule, the Coast Guard's Director of the Great Lakes Pilotage (“the Director”) establishes base pilotage rates by an interim ratemaking pursuant to §§ 404.101 through 404.110 .

The Coast Guard sets base rates to meet the goal of promoting safe, efficient, and reliable pilotage service on the Great Lakes by generating sufficient revenue for each pilotage association to reimburse its necessary and reasonable operating expenses, fairly compensate trained and rested pilots, and provide appropriate funds to use for improvements. A 10-year average is used when calculating traffic to smooth out anomalies caused by unexpected events, such as those caused by the COVID-19 pandemic. The Coast Guard estimates that this rule will result in $2,621,471 of additional costs. This represents an increase in revenue needed for target pilot compensation, an increase in revenue needed for the total apprentice pilot wage benchmark, an increase in the revenue needed for adjusted operating expenses, and an increase in the revenue needed for the working capital fund.

Based on the ratemaking model discussed in this final rule, the Coast Guard is establishing the rates shown in table 1.

This rule affects 58 U.S. Registered pilots, 6 apprentice pilots, 3 pilot associations, and the owners and operators of an average of 296 oceangoing vessels that transit the Great Lakes annually. This rule will not affect the Coast Guard's budget or increase Federal spending. The estimated overall annual regulatory economic impact of this rate change is a net increase of $2,621,471 in estimated payments made by shippers during the 2024 shipping season. This rule establishes the 2024 yearly target compensation for pilots on the Great Lakes at $440,658 per pilot (a $16,260 increase, or 3.83 percent, over their 2023 target compensation). Because the Coast Guard must review, and, if necessary, adjust rates each year, we analyze these as single-year costs and do not annualize them over 10 years. Section X., Regulatory Analyses, in this preamble provides the regulatory impact analyses of this rule.

The legal basis of this rulemaking is 46 U.S.C. Chapter 93, 5 which requires foreign merchant vessels and United States vessels operating “on register” (meaning United States vessels engaged in foreign trade) to use United States or Canadian pilots while transiting the United States waters of the St. Lawrence Seaway and the Great Lakes system. 6 For U.S. Great Lakes pilots, the statute requires the Secretary to “prescribe by regulation rates and charges for pilotage services, giving consideration to the public interest and the costs of providing the services.”  7 The statute requires that rates be established or reviewed and adjusted each year, no later than March 1. 8 The statute also requires that base rates be established by a full ratemaking at least once every 5 years, and, in years when base rates are not established, they must be reviewed and, if necessary, adjusted. 9 The Secretary's duties and authority under 46 U.S.C. Chapter 93 have generally been delegated to the Coast Guard. 10

Each pilot association is an independent business and is the sole provider of pilotage services in its district of operation. Each pilot association is responsible for funding its own operating expenses, maintaining infrastructure, compensating pilots and apprentice pilots, 11 acquiring and implementing technological advances, and training personnel and partners.

The Coast Guard uses a 10-step ratemaking methodology to derive a pilotage rate, based on the estimated amount of traffic, which covers these expenses. 12 The methodology is designed to measure how much revenue each pilotage association would need to cover expenses and to provide compensation to registered pilots. Since the Coast Guard cannot guarantee demand for pilotage services, target pilot compensation for registered pilots is a goal. The actual demand for service dictates the actual compensation for the registered pilots. We then divide that amount by the historic 10-year average for pilotage demand. We recognize that, in years where traffic is above average, pilot associations will accrue more revenue than projected while, in years where traffic is below average, they will take in less. We believe that, over the long term, however, this system ensures that infrastructure will be maintained, and that pilots will receive adequate compensation and work a reasonable number of hours, with adequate rest between assignments, to ensure retention of highly trained personnel.

The purpose of this rule is to issue new pilotage rates for the 2024 shipping season. The Coast Guard believes that the new rates will continue to promote our goal, as outlined in 46 CFR 404.1, of promoting safe, efficient, and reliable pilotage service to facilitate commerce and protect the marine environment in the Great Lakes by generating sufficient revenue for each pilotage association to reimburse its necessary and reasonable operating expenses, fairly compensate trained and rested pilots, and provide appropriate funds to use for improvements.

Pursuant to 46 U.S.C. 9303, the Coast Guard regulates shipping practices and rates on the Great Lakes. Under Coast Guard regulations, all vessels engaged in foreign trade (often referred to as “salties”) are required to engage United States or Canadian pilots during their transit through the regulated waters. 13 United States and Canadian “lakers,” which account for most commercial shipping on the Great Lakes, are not affected. 14 Generally, vessels are assigned a United States or Canadian pilot, depending on the order in which they transit a particular area of the Great Lakes, and do not choose the pilot they receive. If a vessel is assigned a U.S. pilot, that pilot will be assigned by the pilotage association responsible for the district in which the vessel is operating, and the vessel operator will pay the pilotage association for the pilotage services. The Great Lakes Pilotage Authority (Canadian) (GLPA) establishes the rates for Canadian registered pilots.

The waters of the Great Lakes and the St. Lawrence Seaway subject to U.S. jurisdiction are divided into three pilotage districts. Pilotage in each district is provided by an association certified by the Director to operate a pilotage pool. The Saint Lawrence Seaway Pilotage Association (SLSPA) provides pilotage services in District One, which includes all waters of the St. Lawrence River and Lake Ontario subject to U.S. jurisdiction. The Lakes Pilots Association (LPA) provides pilotage services in District Two, which includes all waters of Lake Erie, the Detroit River, Lake St. Clair, and the St. Clair River subject to U.S. jurisdiction. Finally, the Western Great Lakes Pilots Association (WGLPA) provides pilotage services in District Three, which includes all waters of the St. Mary's River; Sault Ste. Marie Locks; and Lakes Huron, Michigan, and Superior subject to U.S. jurisdiction.

Each pilotage district is further divided into “designated” and “undesignated” areas, depicted in table 2. Designated areas, classified as such by Presidential Proclamation, are waters in which pilots must direct the navigation of vessels at all times. 15 Undesignated areas are open bodies of water not subject to the same pilotage requirements. While working in undesignated areas, pilots must “be on board and available to direct the navigation of the vessel at the discretion of and subject to the customary authority of the master.”  16 For these reasons, pilotage rates in designated areas can be significantly higher than those in undesignated areas. Table 2 shows the districts and areas of the Great Lakes and St. Lawrence Seaway.

Over the past several years, the Coast Guard has adjusted the Great Lakes pilotage ratemaking methodology, per our authority in 46 U.S.C. 9303(f), to conduct annual reviews of base pilotage rates, and to adjust such base rates in each intervening year in consideration of the public interest and the costs of providing the services. The current methodology was finalized in the 2022 final rule. 19 We summarize the current methodology in section VI., Summary of the Ratemaking Methodology.

In response to the notice of proposed rulemaking (NPRM) for this ratemaking (88 FR 55629, August 16, 2023) the Coast Guard received six comment submissions. These submissions include one comment filed jointly by the LPA, the SLSPA, and the WGLPA; one filed jointly by the Shipping Federation of Canada, the American Great Lakes Ports Association, and the United States Great Lakes Shipping Association (collectively, the Coalition); one from the president of the Saint Lawrence Seaway Pilots' Association (SLSPA); one from the president of the LPA; one from the Director of the Port of Monroe; and one from the president of the International Longshoreman Association (ILA).

As each of these commenters touched on numerous issues, for each response below, the Coast Guard notes which commenter raised the specific points addressed. In situations where multiple commenters raised similar issues, the Coast Guard provides one response to those issues.

One of the major requests made by the commenters was the addition of more pilots due to the increase in traffic, with several commenters pointing to cruise ship traffic as the driving force in the surge of vessels needing pilotage service. District One stated they estimate a need for three new pilots by 2025, and Districts Two and Three requested one additional pilot each to be added to this rulemaking.

The Coast Guard recognizes District One's need for more pilots going forward, but we believe that this need is addressed by the inclusion of an additional apprentice pilot as proposed in the NPRM. Added to the two existing apprentice pilots that were authorized in the 2023 ratemaking, this inclusion brings the total number of apprentice pilots in District One to three for the 2024 season. These apprentice pilots will be able to accommodate District One's projected need for three additional fully registered pilots for the 2025 season. The Coast Guard will, therefore, keep the pilot numbers for District One the same as they were in the proposed rule.

The LPA, WGLPA, ILA, and Capt. Paul C. Lamarre II all made comments that an additional pilot is needed in both District Two and District Three. After review of the provided documentation, the Coast Guard agrees with these comments. The Coast Guard verified the numbers that LPA provided, which show that another full member pilot is needed to safely provide pilotage service. Based on these comments, our analysis of the increase in demand for pilotage services created by cruise ship traffic, 20 and the unanimous recommendation made by the 2023 Great Lake Pilot Advisory Committee (See transcript, pages 87 and 88), the Coast Guard has added an additional pilot to this year's ratemaking for both Districts Two and Three. For District Two, the Coast Guard reduced the number of apprentice pilots from two to one, since the additional pilot referenced earlier will no longer be an apprentice.

Numerous commenters noted discrepancies in the allocation of bridge hours between designated and undesignated waters for all three districts. The error occurs in the “area” field of the data extract provided by the associations, where each trip number is only labeled with the area in which the trip started, rather than noting each area that the trip passed through. This error causes miscalculation of the designated and undesignated bridge hours in Step 7 of the ratemaking methodology, and the transits by vessel class in Step 8. The commenters suggested to instead use monthly reports from SeaPro to provide the necessary bridge hour calculations for Step 7 and to use weight factor reports from SeaPro to provide the transits by vessel class for Step 8.

The Coast Guard agrees with these comments and has worked with the pilot associations to correct Steps 7 and 8 using the monthly reports and weight factor reports. The Coast Guard could not verify which trips had been incorrectly attributed to either a designated or undesignated area in the economist extract data set previously provided. The Coast Guard will work with the associations to refine the data extracts provided by the associations to ensure that all fields are correctly specified and interpreted.

The reports used for this final rule are available in the docket. We appreciate the commenters who brought this to our attention and will take measures to ensure this error is corrected in data used in future rulemakings. These corrections are set out in further detail in tables 4 and 5.

Numerous commenters noted concerns with the methodology by which the Coast Guard calculates this rate. Concerns included that weighting factors should be calculated using bridge hours instead of vessel transits per visit; that the Coast Guard should audit the pilotage program to find operational efficiencies and cost-savings; and that the Coast Guard should conduct an annual look-back at expenses to find cost-savings. These comments are outside the scope of the current rulemaking, which does not modify the ratemaking methodology. The Coast Guard appreciates these comments and encourages the stakeholders to request that they be placed on a future GLPAC agenda for discussion, or to resubmit them during the next full ratemaking in 2027.

We received a number of comments that we categorized as “Miscellaneous” and are best addressed one by one.

A few commenters urged the Coast Guard to continue having GLPAC meetings in person and in front of a stenographer, while another commenter urged the Coast Guard to investigate a hybrid in-person/virtual set up for future GLPAC meetings. These comments are outside the scope of this rule, but the Coast Guard will continue to engage with stakeholders to determine the best way to hold GLPAC meetings.

One commenter asked the Coast Guard to require an anonymous listing of each pilot's compensation in their annual reports. The Coast Guard disagrees with this recommendation. Compensation of individual pilots is not included in the expense base or methodology, and, therefore, we decline to add a regulatory requirement for pilot associations to publicly report the compensation of individual pilots. The Coast Guard does not use the actual earnings or average earnings; instead, we use target pilot compensation (described in Step 4 of the existing methodology), which the Coast Guard has determined to be reasonable and necessary. Because actual salary values are not used in the ratemaking, the Coast Guard believes that a requirement to report pilot compensation is not in the public interest or necessary to provide for the costs of services. Progress toward pilot retention can be reviewed through pilot turnover and the association's ability to promptly fill pilot vacancies for fully registered pilots and apprentice pilots.

Many commenters took the opportunity to recognize the Director's authority to add up to three additional pilots in each District. We agree with these commenters that the Director does have such authority, and, based on these comments and the unanimous recommendation at the 2023 GLPAC meeting, the Coast Guard has agreed to add one pilot each to Districts Two and Three, and one apprentice pilot to District One.

Table 3 summarizes the changes between the 2024 Ratemaking NPRM and this final rule. This table includes changes from the proposed rule that are not based on comments from the NPRM.

Table 4 shows the difference between the published figures for bridge hours in Step 7 in the NPRM and the updated figures used for this final rule.

Further, the Coast Guard updated the number of transits by vessel class in Step 8, “Calculate Average Weighting Factors by Area,” using updated weighting factor reports provided by the associations from SeaPro. Table 5 details the changes by area and vessel class for 2022, which will be used in this final rule; no changes are made to the 2021 figures.

These refinements to the ratemaking continue to promote safe, efficient, and reliable pilotage service on the Great Lakes, and allow each pilotage association to generate sufficient revenue to cover its necessary and reasonable operating expenses, fairly compensate trained and rested pilots, and realize an appropriate revenue to use for improvements.

As stated previously, the ratemaking methodology, outlined in 46 CFR 404.101 through 404.110, consists of 10 steps that are designed to account for the revenues needed and total traffic expected in each district. The first several steps of the methodology establish base pilotage rates. Additional steps to incorporate the weighting factors are necessary to establish the final pilot rates. The result is an hourly rate, determined separately for each of the areas administered by the Coast Guard.

In Step 1, “Recognize previous operating expenses,” (§ 404.101), the Director reviews audited operating expenses from each of the three pilotage associations. Operating expenses include all allowable expenses, minus wages and benefits. This number forms the baseline amount that each association is budgeted. Because of the time delay between when the association submits raw numbers and when the Coast Guard receives audited numbers, this number is 3 years behind the projected year of expenses. Therefore, in calculating the 2024 rates in this rule, we begin with the audited expenses from the 2021 shipping season.

While each pilotage association operates in an entire district (including both designated and undesignated areas), the Coast Guard determines costs by area. We allocate certain operating expenses to designated areas and certain operating expenses to undesignated areas. In some cases, we can allocate the costs based on where they are accrued. For example, we can allocate the costs of insurance for apprentice pilots who operate in undesignated areas only. In other situations, such as general legal expenses, expenses are distributed between designated and undesignated waters on a pro rata basis, based upon the proportion of income forecasted from the respective portions of the district.

In Step 2, “Project operating expenses, adjusting for inflation or deflation,” (§ 404.102), the Director develops the 2024 projected operating expenses. To do this, we apply inflation adjustors for 3 years to the operating expense baseline received in Step 1. The inflation factors are from the Bureau of Labor Statistics' (BLS) Consumer Price Index (CPI) for the Midwest Region, or, if not available, the Federal Open Market Committee (FOMC) median economic projections for Personal Consumption Expenditures (PCE) inflation. This step produces the total operating expenses for each area and district.

In Step 3, “Estimate number of registered pilots and apprentice pilots,” (§ 404.103), the Director calculates how many registered and apprentice pilots, including apprentice pilots with limited registrations, are needed for each district. To do this, we employ a “staffing model,” described in § 401.220, paragraphs (a)(1) through (3), to estimate how many pilots would be needed to handle shipping during the beginning and close of the season. This number provides guidance to the Director in approving an appropriate number of pilots.

For the purpose of the ratemaking calculation, we determine the number of pilots provided by the pilotage associations (see § 404.103) and use that figure to determine how many pilots need to be compensated via the pilotage fees collected.

In the first part of Step 4, “Determine target pilot compensation benchmark and apprentice pilot wage benchmark,”(§ 404.104(b)), the previous year's target compensation value is first adjusted by actual inflation using the ECI inflation value. If the ECI inflation value is not available, § 404.104(b)(1) and (2) specify the compensation inflation process the Director will use instead.

In the second part of Step 4, (§ 404.104(c)), the Director determines the total compensation figure for each district. To do this, the Director multiplies the compensation benchmark by the number of pilots for each area and district (from Step 3), producing a figure for total pilot compensation.

In Step 5, “Project working capital fund,” (§ 404.105), the Director calculates an added value to pay for needed capital improvements and other non-recurring expenses, such as technology investments and infrastructure maintenance. This value is calculated by adding the total operating expenses (derived in Step 2) to the total pilot compensation and the total target apprentice pilot wage (derived in Step 4), then by multiplying that figure by the preceding year's average annual rate of return for new issues of high-grade corporate securities. This figure constitutes the “working capital fund” for each area and district.

In Step 6, “Project needed revenue,” (§ 404.106), the Director simply adds the totals produced by the preceding steps. The projected operating expense for each area and district (from Step 2) is added to the total pilot compensation, including apprentice pilot wage benchmarks (from Step 4), and the working capital fund contribution (from Step 5). The total figure, calculated separately for each area and district, is the “needed revenue.”

In Step 7, “Calculate initial base rates,” (§ 404.107), the Director calculates an hourly pilotage rate to cover the needed revenue, as calculated in Step 6. This step consists of first calculating the 10-year average of traffic hours for each area. Next, we divide the revenue needed in each area (calculated in Step 6) by the 10-year average of traffic hours to produce an initial base rate.

An additional element, the “weighting factor,” is required under § 401.400. Pursuant to that section, ships pay a multiple of the “base rate”, as calculated in Step 7, by a number ranging from 1.0 (for the smallest ships, or “Class I” vessels) to 1.45 (for the largest ships, or “Class IV” vessels). This significantly increases the revenue collected, and we need to account for the added revenue produced by the weighting factors to ensure that shippers are not overpaying for pilotage services. We do this in the next step.

In Step 8, “Calculate average weighting factors by Area,” (§ 404.108), the Director calculates how much extra revenue, as a percentage of total revenue, has historically been produced by the weighting factors in each area. We do this by using a historical average of the applied weighting factors for each year since 2014 (the first year the current weighting factors were applied).

In Step 9, “Calculate revised base rates,” (§ 404.109), the Director modifies the base rates by accounting for the extra revenue generated by the weighting factors. We do this by dividing the initial pilotage rate for each area (from Step 7) by the corresponding average weighting factor (from Step 8), to produce a revised rate.

In Step 10, “Review and finalize rates,” (§ 404.110), often referred to informally as “Director's discretion”, the Director reviews the revised base rates (from Step 9) to ensure that they meet the goals set forth in 46 U.S.C. 9303(f) and 46 CFR 404.1(a), which include promoting efficient, safe, and reliable pilotage service on the Great Lakes; generating sufficient revenue for each pilotage association to reimburse necessary and reasonable operating expenses; compensating trained and rested pilots fairly; and providing appropriate revenue for improvements.

After the base rates are set, § 401.401 permits the Coast Guard to apply surcharges. We are not using any surcharges in this final rule. In previous ratemakings, where apprentice pilot wages were not built into the rate, the Coast Guard used surcharges to cover applicant pilot compensation in those years to help with applicant recruitment. In this final rule, we include the applicant trainee compensation in the district's operating expenses used in Step 1. Consistent with the 2021, 2022, and 2023 rulemakings, in this final rule we continue to believe that the pilot associations are able to plan for the costs associated with hiring applicant pilots to fill pilot vacancies without relying on the Coast Guard to impose surcharges to help with recruiting.

The Coast Guard is using the existing ratemaking methodology to establish the base rates in this ratemaking. The Coast Guard is not issuing any methodological or other policy changes to the ratemaking within this final rule.

According to 46 U.S.C. 9303(f), and restated in 46 CFR 404.100(a), the Coast Guard must establish base rates by a full ratemaking at least once every 5 years. The Coast Guard has determined that the current base rates and methodology still adequately adhere to the Coast Guard's goals through rate and compensation stability, while promoting recruitment and retention of qualified U.S.-registered pilots.

The Coast Guard has made several changes to the ratemaking methodology over the last several years in consideration of the public interest and the costs of providing services. The recent changes and their impacts are summarized as follows.

In the 2017 ratemaking, Great Lakes Pilotage Rates—2017 Annual Review (82 FR 41466, published August 31, 2017), 21 the Coast Guard modified the methodology to account for the additional revenue produced by the application of weighting factors. This is discussed in detail in Steps 7 through 9 for each district, in section IX., Discussion of Rate Adjustments, of this preamble.

In the 2018 ratemaking, Great Lakes Pilotage Rates—2018 Annual Review and Revisions to Methodology (83 FR 26162, published June 5, 2018), 22 the Coast Guard adopted a new approach in the methodology for the compensation benchmark, based upon United States mariners, rather than Canadian working pilots.

In the 2020 ratemaking, Great Lakes Pilotage Rates—2020 Annual Review and Revisions to Methodology (85 FR 20088, published April 9, 2020), 23 the Coast Guard revised the methodology to accurately capture all costs and revenues associated with Great Lakes pilotage requirements, and to produce an hourly rate that adequately and accurately compensates pilots and covers expenses.

The 2021 ratemaking, Great Lakes Pilotage Rates—2021 Annual Review and Revisions to Methodology (86 FR 14184, published March 12, 2021), 24 changed the inflation calculation in Step 4, §  404.104(b), for interim ratemakings, so that the previous year's target compensation value is first adjusted by actual inflation value using the ECI. That change ensures that the target pilot compensation reimbursed to the association remains current with inflation and competitive with industry pay increases.

The 2022 ratemaking, Great Lakes Pilotage Rates—2022 Annual Review and Revisions to Methodology (87 FR 18488, published March 30, 2022), 25 implemented an apprentice pilot wage benchmark in Steps 3 and 4 to provide predictability and stability to pilot associations training apprentice pilots. The 2022 final rule also codified rounding up the staffing model's final number to ensure that the ratemaking does not undercount the pilot need presented by the staffing model and association circumstances.

The Coast Guard is issuing the target pilot compensation benchmark in this final rule at the target compensation for the ratemaking year 2023, adjusted for inflation. In an interim ratemaking year, the base target pilot compensation is adjusted annually in accordance with § 404.104(b). The Coast Guard arrived at this compensation benchmark as explained in the following paragraphs.

Before 2016, the Coast Guard based the compensation benchmark on data provided by the American Maritime Officers Union (AMOU) regarding its contract for first mates on the Great Lakes. However, in 2016, the AMOU elected to no longer provide this data to the Coast Guard. In the 2016 ratemaking, Great Lakes Pilotage Rates—2016 Annual Review and Changes to Methodology (81 FR 11908, published March 7, 2016), 26 the Coast Guard used the average compensation for a Canadian pilot, plus a 10-percent adjustment. The shipping industry challenged the compensation benchmark, and the court found that the Coast Guard did not adequately support the 10-percent addition to the Canadian GLPA compensation benchmark. American Great Lakes Ports Association v. Zukunft, 296 F.Supp. 3d 27, 48 (D.D.C. 2017), aff'd sub nom. American Great Lakes Ports Association v. Schultz, 962 F.3d 510 (D.C. Cir. 2020). The Coast Guard then based the 2018 full ratemaking compensation benchmark on data provided by the AMOU, regarding its contract for first mates on the Great Lakes in the 2011 to 2015 period (83 FR 26162). The 2018 final rule adjusted the AMOU 2015 data for inflation using Federal Open Market FOMC median economic projections for PCE inflation.

In the 2020 interim year ratemaking final rule (85 FR 20088), the Coast Guard established its most recent pilot compensation benchmark. Given the lack of access to AMOU data, the Coast Guard did not rely on the AMOU aggregated wage and benefit information as the basis for the compensation benchmark. Instead, the Coast Guard adopted the 2019 target pilot compensation (with inflation) as our compensation benchmark going forward. The Coast Guard stated in the 2020 final rule that no other United States or Canadian pilot compensation data was appropriate to use as a benchmark at that time, and that the 2020 benchmark will be used for future rates (85 FR 20091). The Director determined that the ratemaking provided adequate compensation for pilots.

Based on our experience over the past four ratemakings (2020-2023), the Director continues to believe that the level of target pilot compensation for those years provided an appropriate level of compensation for U.S.-registered pilots. According to § 404.104(a), the Director may make necessary and reasonable adjustments to the benchmark based on current information. However, current circumstances do not indicate that an adjustment, other than for inflation, is necessary. The Director bases this decision on the fact that there is no indication that registered pilots are resigning due to their compensation, or that this compensation benchmark is causing shortfalls in achieving reliable pilotage service. The Coast Guard also does not believe that the pilot compensation benchmark is too high relative to the expertise required to perform the job. The compensation will continue to be adjusted annually, in accordance with published inflation rates, which will ensure the compensation remains competitive and current for upcoming years.

Therefore, the Coast Guard does not seek alternative benchmarks for target compensation at this time and, instead, simply adjusts the amount of target pilot compensation for inflation as our target compensation benchmark for 2024, as shown in Step 4. This target compensation benchmark approach has advanced and will continue to advance the Coast Guard's goals through rate and compensation stability while also promoting recruitment and retention of qualified U.S. pilots.

The target compensation for 2024 is $440,658 per registered pilot and $158,637 per apprentice pilot, using the 2023 compensation as a benchmark. We follow the procedure outlined in paragraph (b) of § 404.104, which adjusts the existing compensation benchmark for inflation. We use a two-step process to adjust target pilot compensation for inflation. First, we adjust the 2023 target compensation benchmark of $424,398 by 1.2 percent for an adjusted value of $429,491. This first adjustment accounts for the difference in actual third quarter 2023 ECI inflation, which is 3.9 percent, and the 2023 PCE estimate of 2.7 percent. 27 The second step accounts for projected inflation from 2023 to 2024, which is 2.6 percent. 28 Based on the projected 2024 inflation estimate, the target compensation benchmark for 2024 is $440,658 per pilot. The apprentice pilot wage benchmark is 36 percent of the target pilot compensation, or $158,637 ($440,658 × 0.36). 29

In this final rule, based on the policy changes described in the previous section, we are issuing new pilotage rates for 2024. We conducted the 2024 ratemaking as an interim ratemaking, as we last did in 2022 (87 FR 18488). Thus, the Coast Guard adjusted the compensation benchmark following the interim ratemaking year procedures under § 404.100(b) rather than the procedures for a full ratemaking year in § 404.100(a).

This section discusses the rate changes using the ratemaking steps provided in 46 CFR part 404. We will detail all 10 steps of the ratemaking procedure for each of the 3 districts to show how we arrive at the new rates.

Step 1 in the ratemaking methodology requires that the Coast Guard review and recognize the operating expenses for the last full year for which figures are available (§ 404.101). To do so, we begin by reviewing the independent accountant's financial reports for each association's 2021 expenses and revenues. 30 For accounting purposes, the financial reports divide expenses into designated and undesignated areas. For costs accrued by the pilot associations generally, such as employee benefits, the cost is divided between the designated and undesignated areas on a pro rata basis. The recognized operating expenses for District One are shown in table 6.

In the 2021 expenses used as the basis for this final rule, districts used the term “applicant” to describe applicant trainees and persons who will be called apprentices (applicant pilots), under the definition of “apprentice pilot”, which was introduced in the 2022 final rule. Therefore, when describing past expenses, the term “applicant” is used to match what was reported from 2021, which includes both applicant and apprentice pilots. The term “apprentice” is used to distinguish apprentice pilot wages and describe the impacts of the ratemaking going forward.

The Coast Guard continues to include apprentice salaries as an allowable expense in the 2024 ratemaking, as this final rule is based on 2021 operating expenses, when salaries were still an allowable expense. Beginning with the 2025 ratemaking, apprentice pilot salaries will no longer be included as a 2022 operating expense, because apprentice pilot wages will have already been factored into the ratemaking Steps 3 and 4 in calculation of the 2022 rates. Beginning in 2025, the applicant salaries' operating expenses for 2022 will consist of only applicant trainees (those who are not yet apprentice pilots). The recognized operating expenses for District One are shown in table 6.

In accordance with the text in § 404.102, having identified the recognized 2021 operating expenses in Step 1, the next step is to estimate the current year's operating expenses by adjusting for inflation over the 3-year period. We calculate inflation using the BLS data from the CPI for the Midwest Region of the United States for the 2022 inflation rate. 31 Because the BLS does not provide forecasted inflation data, we use economic projections from the Federal Reserve for the 2023 and 2024 inflation modification. 32 Based on that information, the calculations for Step 2 are as presented in table 7.

The New England and Mid-Atlantic Fishery Management Councils (together, the Councils) jointly manage the monkfish fishery. The Monkfish Fishery Management Plan includes a specifications process that requires the Councils to recommend quotas on a triennial basis. This action finalizes 2024 specifications approved by the Councils in Framework Adjustment 13 to the Monkfish Fishery Management Plan, which included specifications for fishing years 2023-2025.

On August 11, 2023, NMFS published a final rule approving Framework 13 measures for the 2023 fishing year (88 FR 54495), based on a recent stock assessment update and consistent with the New England Council's Scientific and Statistical Committee recommendations. At that time, NMFS also projected a continuation of those same specifications for 2024 and 2025. The final total allowable landings in both the Northern and Southern Fishery Management Areas for 2024 are summarized in table 1. The 2024 measures are the same as those implemented in 2023.

NMFS has reviewed the available information on fishing years 2022 and 2023. There have been no annual catch limit overages, nor is there any new biological information that would require altering the projected 2024 specifications. Based on this, we are implementing the fishing year 2024 specifications announced in the Framework 13 final rule. The 2024 specifications will be effective until April 30, 2025.

This final rule makes no modification to other management measures for the monkfish fishery ( e.g., trip limits, Days-At-Sea allocations, etc. ).

Pursuant to section 304(b)(3) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the NMFS Assistant Administrator has determined that this final rule is consistent with the Monkfish Fishery Management Plan, other provisions of the Magnuson-Stevens Act, and other applicable law.

This final rule is exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(3)(B), we find good cause to waive prior public notice and opportunity for public comment on the catch limit and allocation adjustments because allowing time for notice and comment is unnecessary. The Framework 13 proposed rule provided the public with the opportunity to comment on the 2023-2025 specifications (88 FR 25351, April 26, 2023). Two comments were received on the proposed rule, only one of which specifically addressed the 2023-2025 specifications. This comment supported these specifications. Thus, the proposed and final rules that contained the projected 2023-2025 specifications provided a full opportunity for the public to comment on the substance and process of this action. No circumstances or conditions have changed in the monkfish fishery that would cause new concern or necessitate reopening the comment period and the final 2024 specifications being implemented by this rule are unchanged from those projected in the Framework 13 final rule.

The Chief Counsel for Regulation, Department of Commerce, previously certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that the 2023-2025 monkfish specifications would not have a significant economic impact on a substantial number of small entities. Implementing status quo specifications for 2024 will not change the conclusions drawn in that previous certification to the SBA. Because advance notice and the opportunity for public comment are not required for this action under the Administrative Procedure Act, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., do not apply to this rule. Therefore, no new regulatory flexibility analysis is required and none has been prepared.

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