This rule responds to public comments on the interim final rule and finalizes the removal of obsolete procedures and requirements presented in the interim final rule. This final rule introduces no substantive changes and does not raise existing costs. There are no significant changes between the interim final rule and the final rule. In alignment with the Interim Final Rule, the Final Rule places no additional burdens on F, J, and M nonimmigrants, or on sponsoring academic institutions and programs.

Section 102 of the Homeland Security Act of 2002 (Pub. L. 107-296, 116 Stat. 2135), 6 U.S.C. 112, section 103(a)(1) and (3) of the Immigration and Nationality Act (INA), and 8 U.S.C. 1103(a)(1), (3), charge the Secretary with the administration and enforcement of the immigration and naturalization laws of the United States, to include the issuance of regulations. Section 214(a) of the INA, 8 U.S.C. 1184(a), gives the Secretary the authority to prescribe the time and conditions of admission of any noncitizen as a nonimmigrant.

On March 1, 2003, when the responsibilities of the former Immigration and Naturalization Service (INS) transferred from the Department of Justice (DOJ) to DHS pursuant to the Homeland Security Act of 2002, Public Law 107-296, 116 Stat. 2135 (Nov. 25, 2002), SEVP and the SEVIS functions transferred to DHS. Within DHS, U.S. Immigration and Customs Enforcement (ICE) administers SEVP by ensuring that government agencies have essential information related to nonimmigrant students and exchange visitors to preserve national security. For the sake of simplicity in this preamble, in rules promulgated prior to March 1, 2003, any reference to the INS, or “the Service” as it was referred to in the past, is now referred to as DHS, and any reference to the Attorney General is now referred to as the Secretary of Homeland Security (the Secretary).

The INA established who may be admitted as F, J, or M nonimmigrants. Specifically, section 101(a)(15)(F) of the INA, 8 U.S.C. 1101(a)(15)(F), established the F classification for nonimmigrants who wish to enter the United States temporarily and solely for the purpose of pursuing a full course of study at an academic or accredited language training school certified by SEVP, as well as for the spouses and minor children of such noncitizens.

Section 101(a)(15)(J) of the INA, 8 U.S.C. 1101(a)(15)(J), established the J classification for nonimmigrants who wish to come to the United States temporarily to participate in exchange visitor programs designated by the Department of State (DOS), as well as for the spouses and minor children of such noncitizens.

Section 101(a)(15)(M) of the INA, 8 U.S.C. 1101(a)(15)(M), established the M classification for nonimmigrants who wish to enter the United States temporarily and solely for the purpose of pursuing a full course of study at an established vocational or other recognized nonacademic institution (other than a language training program) certified by SEVP, as well as for the spouses and minor children of such noncitizens.

SEVP collects information related to nonimmigrant students and exchange visitors under various statutory authorities. Section 641 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Public Law 104-208, 110 Stat. 3009-704 (Sep. 30, 1996) (codified as amended at 8 U.S.C. 1372), authorized the creation of a program to collect current and ongoing information from schools and exchange visitor programs regarding nonimmigrant students and exchange visitors during the course of their stay in the United States and stipulated that such information is to be collected electronically, where practicable. Section 641(e) of IIRIRA further directed that this information collection system be self-funded by the nonimmigrant foreign students and exchange visitors. To meet these requirements, DHS promulgated separate rulemakings that established the framework for SEVIS; required mandatory compliance for all schools to use SEVIS for the admission of new F, J, and M nonimmigrant students;  1 and provided for the collection of a fee to be paid by certain nonimmigrants seeking status as F-1, F-3, M-1, or M-3 nonimmigrant students or as J-1 nonimmigrant exchange visitors. 2 The DOS placed similar mandatory SEVIS compliance requirements on DOS-designated Exchange Visitor Program sponsors regarding J nonimmigrants. 3

SEVP is managed in accordance with Homeland Security Presidential Directive-2 (HSPD-2), Combating Terrorism Through Immigration Policies (Oct. 29, 2001), as amended, and section 502 of the Enhanced Border Security and Visa Entry Reform Act of 2002 Public Law 107-173, 116 Stat. 543, 563 (May 14, 2002) (EBSVERA). HSPD-2 requires the Secretary to conduct periodic, ongoing reviews of institutions certified to accept F nonimmigrants, and to include checks for compliance with recordkeeping and reporting requirements. EBSVERA directs the Secretary to review the compliance with recordkeeping and reporting requirements under 8 U.S.C. 1101(a)(15)(F) and 1372 of all schools approved for attendance by F students within two years of enactment, and every two years thereafter. These additional requirements have also been promulgated in rulemakings. 4

SEVP uses SEVIS to maintain information about:

• SEVP-certified schools;

• F-1 students enrolled in academic programs in the United States (and their F-2 dependents);

• M-1 students enrolled in vocational programs in the United States (and their M-2 dependents);

• DOS-designated Exchange Visitor Program sponsors; and

• J-1 Exchange Visitor Program participants (and their J-2 dependents).

SEVIS provides authorized users access to reliable information on F, J, and M nonimmigrants and their dependents. Schools use SEVIS to petition SEVP for certification, which allows the school to offer programs of study to nonimmigrant students. Designated school officials (DSOs) of SEVP-certified schools use SEVIS to:

• Update school information and apply for recertification of the school for the continued ability to issue the Form I-20, Certificate of Eligibility for Nonimmigrant Student Status or successor form, to nonimmigrant students and their dependents;

• Issue the Form I-20 or successor form to specific individuals to obtain F or M status while enrolled at the school;

• Fulfill the school's reporting responsibility regarding student addresses, courses of study, enrollment, employment, and compliance with the terms of student status; and

• Transfer student SEVIS records to other institutions.

Exchange Visitor programs use SEVIS to petition DOS for designation as a sponsor so they can offer educational and cultural exchange programs to exchange visitors. Responsible officers of designated Exchange Visitor programs use SEVIS to:

• Update sponsor information and apply for re-designation every two years;

• Issue the Form DS-2019, Certificate of Eligibility for Exchange Visitor (J-1) Status, to specific individuals to obtain J status;

• Fulfill the sponsor's reporting responsibility regarding exchange visitor addresses, sites of activity, program participation, employment, and compliance with the terms of the J status; and

• Transfer the exchange visitor SEVIS records to other institutions.

Noncitizens must apply to an SEVP-certified school and be accepted for enrollment as a student. SEVP-certified schools enter the prospective student's information into SEVIS and issue a Form I-20 or successor form. The prospective student then presents that endorsed form when applying for an F or M visa with DOS abroad. Similarly, a noncitizen must apply to a DOS-designated Exchange Visitor program and be accepted for enrollment as a basis for applying for a J exchange visitor visa. The Exchange Visitor program enters the prospective exchange visitor's information into SEVIS and issues a Form DS-2019. The prospective exchange visitor then submits that endorsed form when applying for a J visa with DOS abroad.

At the time of admission into the United States, U.S. Customs and Border Protection inspection officers will enter information into DHS systems related to the F, J, or M nonimmigrant's admission. These systems interface with SEVIS to provide SEVP and DOS with entry information about nonimmigrant students and exchange visitors.

After admission and during the nonimmigrant student or exchange visitor's stay in the United States, SEVP-certified schools and Exchange Visitor programs are required to update information about approved F, J, and M nonimmigrants. SEVIS allows schools and Exchange Visitor programs to transmit required information electronically about F, J, and M nonimmigrants throughout the nonimmigrant student or exchange visitor's stay in the United States.

SEVIS enables DHS and DOS to monitor and ensure proper recordkeeping and reporting by SEVP-certified schools and Exchange Visitor programs. Further, SEVIS provides a mechanism for nonimmigrant student and exchange visitor status violators to be identified so that appropriate action may be taken ( i.e., denial of admission, denial of benefits, or removal from the United States). Prior to the creation of SEVIS in January 2003, enrollment of nonimmigrant students was an entirely manual and paper-based process, which meant that schools maintained their own paper records about nonimmigrant students that were only produced upon request.

On December 12, 2022, DHS published an interim final rule which removed obsolete procedures and requirements in 8 CFR 214.1, 214.2, 214.3, 214.4, 214.12, and 214.13 governing F, J, and M nonimmigrants that no longer apply since the implementation of SEVIS in 2003. The rule also removed language requiring original signatures on Form I-17 or successor form and clarified the regulatory language that implies the requirement for original signatures on Form I-20 or successor form, and made technical changes to correct typographical errors, update references, and reflect the transfer of responsibilities to DHS from DOJ. 5 See Removal of Obsolete Procedures and Requirements Related to F, J, and M Nonimmigrants, 87 FR 75891 (Dec. 12, 2022) (2022 Interim Final Rule), amended by; Removal of Obsolete Procedures and Requirements Related to F, J, and M Nonimmigrants; Correcting Amendments, 88 FR 53761 (Aug. 11, 2023) (correction to 2022 Interim Final Rule). DHS received four comments on the 2022 Interim Final Rule. DHS considered all public comments before issuing this final rule. DHS is finalizing these changes to eliminate confusion and provide clarity to the public. A discussion of the public comments and responses follows later in this preamble.

The interim final rule made general wording, capitalization, and style changes. Some examples of these changes include, replacing numeric symbols under 10 with the corresponding word; inserting indefinite articles where appropriate; and replacing phrases such as “not pursuing” with “no longer pursuing.” Additionally, the interim final rule removed references to “approval” and its derivatives and replaced them with “certify” and its derivatives to mean authorization for schools to enroll foreign students. 6 Further, the interim final rule updated terminology to reflect the transfer of certain functions and responsibilities of the former INS to DHS. Technical amendments of this nature apply throughout the amended sections. As discussed in the III. Discussion of Public Comments on the Interim Final Rule section below of this final rule, DHS has considered the input provided by commenters in response to the interim final rule. The majority of commenters supported the proposed changes, and DHS is finalizing the changes in the interim final rule, with some non-significant modifications. This final rule amends 8 CFR 214 to clarify who can provide medical evidence, removes and reserves obsolete language related to transfers, and adopts some of the commenters' suggestions.

In response to the interim final rule, DHS received four public comments from stakeholders, including two institutions of higher education, an association of international educators, and a member of the public. DHS reviewed all the comments and addresses them in this final rule.

Three of the four commenters expressed support for the interim final rule. Two commenters thanked DHS and SEVP for their continued engagement and willingness to modernize. Another commenter said that they welcomed the opportunity to review (the interim final rule) because it helps clarify and streamline the workflow, “which benefits our international students and scholars as well.” One commenter suggested clarifying one of the changes, and the other three offered suggestions for additional regulatory changes. All of the comments were reviewed and considered, but some of the suggestions were out of scope for this final rule and adopting them would require notice and comment; for that reason, those out-of-scope comments were not adopted in this final rule. However, DHS may consider those suggestions when contemplating future enhancements to SEVP and SEVIS.

Comment: Some commenters described how the interim final rule helps to clarify, streamline, and modernize processes.

Response: DHS appreciates this observation and believes that this rulemaking places no additional burden on F, J, and M nonimmigrants, or on sponsoring academic institutions and programs. Further, DHS observes that eliminating original signatures on the Form I-17 or successor form will further streamline processes because it eliminates the requirement for DSOs to obtain original signatures.

DHS received no comments expressing opposition to the interim final rule.

Comment: One commenter suggested that DHS clarify the language about who may provide the medical documentation that a DSO must see before authorizing a reduced course load for a nonimmigrant student. The commenter specifically suggests removing “psychiatrist” from the approved provider list. The commenter states that because a psychiatrist is a medical doctor there is no need to parse psychiatrists out from other medical doctors.

Response: DHS agrees with the commenter that medical doctor includes psychiatrist and that the wording about who may provide the medical documentation could be clarified further; therefore, DHS is adopting this suggestion by amending the regulatory text to read: “In order to authorize a reduced course load based upon a medical condition, the student must provide medical documentation from a licensed medical doctor, a licensed doctor of osteopathy, a licensed psychologist, or a licensed clinical psychologist to the DSO to substantiate the illness or medical condition.”

Comment: Some commenters suggested that DHS expand the list of medical providers qualified to provide the medical documentation that a DSO must see before authorizing a reduced course load. For instance, they stated that “these days, many U.S. citizens are likelier to be seen by a nurse practitioner. . ., or a social worker or mental health counselor.”

Response: DHS acknowledges that many health care services can be delivered by a variety of providers, such as the ones suggested by commenters. However, the scope and purpose of this interim final rule and final rule are not to add more medical professionals to the list of accepted medical providers, ( see 8 CFR 214.2(f)(6)(iii)(B)), but to clarify the language of the regulation to indicate that a licensed psychologist or psychiatrist could provide the evidence for the student's mental health diagnoses; Expanding the list of medical providers is a significant change that would require public review and comment and is outside the scope of this rulemaking. Therefore, DHS cannot adopt this suggestion at this time, but may consider this suggestion in the event of a future rulemaking.

Comment: Two commenters suggested that DHS should eliminate obsolete wording about transfer procedures.

Response: DHS agrees with this suggestion because the transfer procedures outlined in 8 CFR 214.2(f)(8)(iii) no longer apply since the implementation of SEVIS. DSOs no longer note “transfer completed on (date)” on a student's Form I-20 (or successor form), return the Form I-20 (or successor form) to the student, and send a copy elsewhere. Therefore, DHS is removing and reserving that paragraph.

Comment: One commenter suggested DHS make additional changes to remove other obsolete procedures and requirements, including:

• “Item (2) of Table 2 to Paragraph (f), the paragraph contents of 8 CFR 214.2(f), should be revised by changing `(2) I-20 ID' to `(2) Student maintenance of Form I-20 or successor form.'

• “Remove 8 CFR 214.2(f)(8)(iii), a pre-SEVIS provision.”

• “Remove 8 CFR 214.2(f)(9)(ii)(F)(2), a pre-SEVIS provision.”

• “In 8 CFR 214.2(f)(9)(i), remove the three asterisks (* * *) that appear between the third and fourth sentences.”

• “In 8 CFR 214.2(m)(l)(i)(B), remove the word “SEVIS” that precedes the term `Form 1-20.' ”

• “In 8 CFR 214.2(j)(l)(i), the term `SEVIS Form DS-2019' appears four times. The word `SEVIS' should be removed in those instances.”

• “In 8 CFR 214.2(j)(l)(vii), the term `SEVIS Form DS-2019' appears one time. The word `SEVIS' should be removed in that instance.”

• “To retain parity with the F and M regulations, DHS should consider using the term `Form DS-2019 or successor form' wherever the term `Form DS-2019' appears in 8 CFR 214.1.”

Response: DHS appreciates these suggestions for additional changes and has made some of the suggested corrections already (see ICEB-2021-0016, Correcting amendments, published August 9, 2023). DHS will adopt the suggestions to amend paragraphs 8 CFR 214.2(f) and (m) related to the Form I-20 and pre-SEVIS provisions. However, 8 CFR 214.2(j) falls under the authority of DOS, so DHS cannot adopt the suggestions related to the Form DS-2019.

Comment: One commenter suggested that to meet the student demand for online, hybrid, and in-person courses, and to give schools the ability to offer instruction using these preferred learning styles, DHS should eliminate or reduce the physical presence requirement for nonimmigrant students.

Response: DHS acknowledges that hybrid and online instruction methods are becoming increasingly common. However, changing the regulatory requirement for nonimmigrant students to take no more than the equivalent of one online or distance education course  7 is a significant change that would require public review and comment and is outside the scope of this rule; therefore, DHS cannot adopt this suggestion at this time.

Comment: Some commenters suggested DHS should allow additional reduced course load authorizations beyond what is currently allowed.

Response: Changing regulations to allow nonimmigrant students to engage in less than a full course of study  8 with more frequency than is currently allowed under 8 CFR 214.2(f)(6)(iii) is a significant regulatory change that would require public review and comment and is outside the scope of this rule; therefore, DHS cannot adopt this suggestion at this time.

Comment: One commenter suggested that DHS should allow DSOs to make exceptions for nonimmigrant students who have not applied for an extension of their program of study.

Response: Allowing DSOs to grant exceptions to nonimmigrant students who did not apply for an extension until after the program end date noted on the Form I-20 or successor form is a significant regulatory change that would require public review and comment and is outside the scope of this rule; therefore, DHS cannot adopt this suggestion at this time.

Comment: Some commenters suggested that DHS should clarify the meaning of “initial” in 8 CFR 214.2(f)(6)(iii)(A), which states, “The DSO may authorize a reduced course load on account of a student's initial difficulty with the English language or reading requirements, unfamiliarity with U.S. teaching methods, or improper course level placement,” noting “it would be helpful to clarify which reasons can (or cannot) be used.” In addition, commenters suggested expanding when the list of reasons may be used to include times beyond the initial period.

Response: DHS interprets the term “initial” as it is used in 8 CFR 214.2(f)(6)(iii)(A) to refer to a new student at the beginning of their studies in the United States. Expanding when the reasons to drop below a full course of study for academic reasons may be used is a significant regulatory change that would require public review and comment and is outside the scope of this rule; therefore, DHS cannot adopt this suggestion at this time.

Comment: One commenter suggested that DHS allow practical training to be authorized once per educational level instead of only allowing an additional 12 months of practical training when a student changes to a higher educational level.

Response: DHS appreciates that practical training is useful to students. However, changing practical training requirements is a significant regulatory change that would require public review and comment and is outside the scope of this rule; therefore, DHS cannot adopt this suggestion at this time.

Comment: One commenter suggested that DHS should allow for “continued authorization of a medical reduced course load beyond 12 months for chronic and/or serious conditions.” The commenter stated that the current policy is discriminatory to students with disabilities.

Response: DHS appreciates that nonimmigrant students with health challenges may require additional time to complete a course of study and is considering how to better address this reality. However, changing the requirements for how long a DSO may authorize a reduced course load (or, if necessary, no course load) due to a chronic or serious illness or a disability is a significant regulatory change that would require public review and comment and is outside the scope of this rule; therefore, DHS cannot adopt this suggestion at this time.

Comment: One commenter suggested that DHS remove the requirement that an optional practical training application must be filed with USCIS within a certain number of days from the date when the DSO recommends it in SEVIS.

Response: Changing practical training requirements is a significant regulatory change that would require public review and comment and is outside the scope of this rule; therefore, DHS cannot adopt this suggestion at this time.

Comment: Some commenters suggested that DHS eliminate the requirement for a travel endorsement signature on the Form I-20 for students returning to the United States from a temporary absence of five months or less.

Response: Eliminating the requirement for returning students to present a properly endorsed Form I-20 (or successor form) is a significant regulatory change that would require public review and comment and is outside the scope of this rule; therefore, DHS cannot adopt this suggestion at this time.

Comment: One commenter suggested that DHS clarify what the term “continues” means in 8 CFR 214.2(f)(5)(ii) and that DHS clarify that the transfer from one educational level to another can be downward as well as upward.

Response: DHS interprets the term “continues” as it is used in 8 CFR 214.2(f)(5)(ii) to mean that a student is maintaining status when they continue to be enrolled, even when transferring from one educational level to another. The term as used here underscores the importance of continued enrollment to maintain status. Adding a description of what “continues” means within the context of 8 CFR 214.2(f)(5)(ii) is a significant regulatory change that would require public review and comment and is outside the scope of this rule; therefore, DHS cannot adopt this suggestion at this time.

DHS developed this final rule after considering numerous statutes and Executive orders related to rulemaking. The below sections summarize the analyses based on a number of these statutes or Executive orders.

Executive Orders 12866 (Regulatory Planning and Review) as amended by Executive Order 14094 (Modernizing Regulatory Review), and 13563 (Improving Regulation and Regulatory Review) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is deemed to be necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health, and safety effects; distributive impacts; and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility.

This final rule has not been designated a “significant regulatory action” under section 3(f) of Executive Order 12866, as amended by Executive Order 14094. Accordingly, this final rule has not been reviewed by the Office of Management and Budget (OMB).

This final rule removes unnecessary procedures and requirements in 8 CFR 214.1, 214.2, 214.3, 214.4, 214.12, and 214.13 that govern F, J, and M nonimmigrants. These changes are necessary to improve clarity and remove obsolete or unnecessary information that no longer applies since the implementation of SEVIS. This final rule introduces no substantive changes; does not raise existing costs; and places no additional burden on F, J, and M nonimmigrants or their sponsoring academic institutions and programs.

DHS estimates that this final rule will have no costs and will result in quantifiable cost savings and additional unquantifiable benefits. As shown in Table 1, DHS estimates this final rule will have a 10-year annualized monetized cost savings of $27,568 in 2022 dollars (for both 3 and 7 percent discount rates) and unquantified benefits with regard to convenience, time savings, and improvements to the environment from reduced paper use. Table 1 summarizes the findings of this regulatory impact analysis (RIA).

The NRC staff is issuing a new guide in the NRC's “Regulatory Guide” series. This series was developed to describe methods that are acceptable to the NRC staff for implementing specific parts of the agency's regulations, to explain techniques that the staff uses in evaluating specific issues or postulated events, and to describe information that the staff needs in its review of applications for permits, certifications, approvals, and licenses.

RG 1.253, Revision 0, “Guidance for a Technology-Inclusive Content of Application Methodology to Inform the Licensing Basis and Content of Applications for Licenses, Certifications, and Approvals for Non-Light-Water Reactors,” provides guidance to assist interested parties and prospective applicants in the development of content for major portions of their safety analysis reports required in applications for permits, licenses, certifications, and approvals by the NRC to ensure that applications for non-LWR facility designs using the LMP process meet the minimum requirements for construction permit, operating license, combined license, or design certification applications.

RG 1.253 was issued as a draft regulatory guide (DG) with a temporary identification of DG-1404 (ADAMS Accession No. ML22076A003).

The NRC published DG-1404, Revision 0 in the Federal Register on May 25, 2023 (88 FR 33846), for a 45-day public comment period. Subsequently, the comment period was extended by 30-days as noted in the Federal Register June 28, 2023 (88 FR 41862). The public comment period closed on August 10, 2023. On September 8, 2023, the NRC published a request for public comment on Revision 1 to DG-1404 in the Federal Register (88 FR 61989). Revision 1 to DG-1404 provided additional guidance for the scope, level of detail, elements and plant representation for a probabilistic risk assessment supporting an LMP-based construction permit application. The public comment period for Revision 1 to DG-1404 closed on October 10, 2023. Public comments on DG-1404 Revision 0 and Revision 1, and the staff responses to the public comments are available in ADAMS under Accession No. ML23269A223.

The NRC staff anticipates the submission of advanced power-reactor applications within the next few years based on preapplication engagement initiated by several prospective applicants. Because many of these designs are non-LWRs, the NRC staff developed technology-inclusive, risk-informed, performance-based guidance to support the development of major portions of safety analysis report content for these non-LWR applications. The guidance describes the development of major portions of the safety analysis report using the industry-developed guidance contained in Nuclear Energy Institute (NEI) 21-07, Revision 1, “Technology Inclusive Guidance for Non-Light-Water Reactors, Safety Analysis Report Content for Applicants Using the NEI 18-04 Methodology,” (ADAMS Accession No. ML22060A190). The guidance will facilitate the development of non-LWR applications for construction permits or operating licenses under part 50 of title 10 of the Code of Federal Regulations (10 CFR), “Domestic Licensing of Production and Utilization Facilities,” or combined licenses or design certifications under 10 CFR part 52, “Licenses, Certifications, and Approvals for Nuclear Power Plants.”

The NRC staff notes it is developing a rule to amend parts 50 and 52 to align reactor licensing processes and incorporate lessons learned from new reactor licensing into the regulations (RIN 3150-Al66). This RG may need to be updated to conform to changes to 10 CFR parts 50 and 52, if any, adopted through that rulemaking. Further, as of the date of this RG, the NRC staff is developing an optional performance-based, technology-inclusive regulatory framework for licensing nuclear power plants designated as 10 CFR part 53 (RIN 3150-AK31). The NRC intends to revise this guidance as a part of the ongoing rulemaking for 10 CFR part 53.

To standardize the development of content of a non-LWR application, the staff focused on two activities: the Advanced Reactor Content of Application Project (ARCAP) and the Technology-Inclusive Content of Application Project (TICAP). The ARCAP is an NRC-led activity that is intended to result in guidance for a complete non-LWR application for review under 10 CFR part 50 or 10 CFR part 52, and which the staff would update, as appropriate, pending the issuance of the 10 CFR part 50 and 10 CFR part 52 rulemaking previously mentioned in this document, or if the Commission issues a final 10 CFR part 53 rule.

The TICAP is an industry led guidance activity focused on the scope and depth of information to include in the portions of a safety analysis report that address the implementation of the LMP methodology described in NEI 18-04, Revision 1, and endorsed by the NRC in Regulatory Guide 1.233, “Guidance for a Technology-Inclusive, Risk-Informed, and Performance-Based Methodology to Inform the Licensing Basis and Content of Applications for Licenses, Certifications, and Approvals for Non-Light-Water Reactors,” (ADAMS Accession No. ML20091L698).

During the 711th meeting of the Advisory Committee on Reactor Safeguards (ACRS), December 6-7, 2023, the ACRS, the NRC staff, and representatives of other stakeholders discussed guidance documents related to the ARCAP and the TICAP. On December 20, 2023, the ACRS issued a report documenting its review of these guidance documents (ADAMS Accession No. ML23348A182). The conclusions and recommendations in the ACRS report apply to all the ARCAP and TICAP guidance documents. In its December 2023 report, the ACRS also recommended specific changes to DG-1404. As set forth in its letter dated March 18, 2024, (ADAMS No. ML24024A025) in which the NRC staff responded to the ACRS report, the NRC staff revised RG 1.253 to address specific ACRS recommendations.

As noted in the Federal Register on December 9, 2022 (87 FR 75671), this document is being published in the “Rules” section of the Federal Register to comply with publication requirements under 1 CFR chapter I.

The table in this rulemaking provides the document description, ADAMS accession number, and, if appropriate, the docket identification number on supporting documents associated with the document that is the subject of this Federal Register document.

This RG is a rule as defined in the Congressional Review Act (5 U.S.C. 801-808). However, the Office of Management and Budget has not found it to be a major rule as defined in the Congressional Review Act.

RG 1.253, Revision 0, does not constitute backfitting as defined in 10 CFR 50.109, “Backfitting,” and as described in Management Directive (MD) 8.4, “Management of Backfitting, Forward Fitting, Issue Finality, and Information Requests”; does not constitute forward fitting as that term is defined and described in MD 8.4; and does not affect the issue finality of any approval issued under 10 CFR part 52. The guidance would not apply to any current licensees or applicants or existing or requested approvals under 10 CFR part 52, and therefore its issuance cannot be a backfit or forward fit or affect issue finality. Further, as explained in RG 1.253, applicants and licensees would not be required to comply with the positions set forth in RG 1.253.

A member of the public may, at any time, submit suggestions to the NRC for improvement of existing RGs or for the development of new RGs. Suggestions can be submitted on the NRC's public website at https://www.nrc.gov/reading-rm/doc-collections/reg-guides/contactus.html. Suggestions will be considered in future updates and enhancements to the “Regulatory Guide” series.

This procedural rule amends DOE's procedures for providing the public with an opportunity to request the correction of a possible error identified in the regulatory text of a final rule that would establish new or amended energy conservation standards prior to the rule's publication in the Federal Register . 1 See 10 CFR 430.5. On October 9, 2020, DOE issued a notice of proposed rulemaking (“NOPR”), proposing various amendments to 10 CFR 430.5. 2 85 FR 64071. This final rule adopts some of the NOPR proposals. Specifically, the amendments contained within this final rule clarify that the Secretary was not, and is not, under a mandatory duty to post final energy conservation standard rules online for error-correction purposes, but to do so was, and is, a discretionary and voluntary act.

When DOE elects to post online an energy conservation standard final rule prior to its submission and publication in the Federal Register —or what is referred to as the pre-publication final rule for the purposes of this final rule discussion—DOE shall follow the procedures set forth in the error correction process found in 10 CFR 430.5. Additionally, this final rule amends language in 10 CFR 430.5 to clarify that, if DOE posts a rule for error-correction purposes, DOE will continue to strive to provide a 45-day review period for error correction, but it is within DOE's discretion to provide a shorter or longer period.

As for other amendments proposed in the NOPR, DOE is retaining certain of the current regulatory requirements in 10 CFR 430.5. Specifically, DOE is retaining the current definitions, as well as the requirement for DOE to submit for publication in the Federal Register a pre-publication final rule that has been posted in accordance with the error correction process. See 10 CFR 430.5(b) and (f). DOE is also retaining the language in 10 CFR 430.5(a), except to clarify that the error correction process is an optional and voluntary process. Furthermore, DOE is retaining the current requirements in 10 CFR 430.5(g) and (h).

The adopted amendments are summarized in Table I.1 and compared to the proposed amendments, as well as the requirements prior to the amendments.

While this final rule contains amendments to the error correction process—the process will be applied to identify errors in pre-publication final rules that might be difficult to remedy due to EPCA's anti-backsliding provision (42 U.S.C. 6295(o)(1))—these modifications do not impair DOE's ability to meet its statutorily prescribed deadlines for either establishing or amending energy conservation standards. Instead, these modifications focus solely on DOE's intent to allow the public to identify possible technical and objective errors in certain pre-publication final rules. DOE will use the error correction process only to seek input on the narrow question of whether an error has occurred in the regulatory text of a pre-publication final rule document.

The remainder of this final rule discusses comments received in response to the NOPR, as well as DOE's responses and the amendments adopted in this final rule.

The NOPR included a summary detailing how DOE intended to amend specific sections of the ECR to better align with the rule's intended purpose. DOE received seven comments in response to the NOPR ( see Table II.1) voicing various levels of support and opposition.

A parenthetical reference at the end of a comment quotation or paraphrase provides the location of the item in the public record. 3

Commenters generally expressed support of DOE's proposal to clarify the application of the error correction process, but they also harbored reservations regarding certain aspects of DOE's proposals. For example, APGA/Spire supported the Department's proposed amendments to clarify that the rule does not establish a non-discretionary duty to publish pre-publication final rules in the Federal Register after undergoing error correction review. (APGA/Spire, No. 05, at p. 2) However, those commenters disagreed with the proposal's attempt to clarify the extent of DOE's discretion with respect to the posting of documents for review. (APGA/Spire, No. 05, at p. 2) Similarly, the Joint Industry Commenters, while supportive of DOE's efforts to better reflect the Department's intent behind the rule, noted their collective concerns that the proposal would curtail DOE's ability to cure errors and limit public certainty regarding the error correction process. (Joint Industry Commenters, No. 03, at p. 1) These commenters stated that the ECR does not impose non-discretionary mandates superseding DOE's inherent discretion to make policy determinations but, in their view, the ECR is separate from DOE's policy discretion and the proposal's attempt at clarifying its discretion instead created uncertainty. (Joint Industry Commenters, No. 03, at pp. 1-2)

Lennox agreed with the NOPR's proposed amendment to clarify that the ECR does not create a nondiscretionary duty to publish pre-publication final rules at the end of the review process. (Lennox, No. 4 at p. 5 (referencing 85 FR 64072)) But Lennox asserted that the entire error correction process should not be made voluntary. (Lennox, No. 4 at p. 5) GEA supported the comments submitted by the Joint Industry Commenters and added that a rule containing an error making a material difference to that rule should be corrected and that having a consistent, transparent, and predictable error correction process would benefit all parties. (GEA, No. 7 at p. 2)

A.O. Smith supported the idea of narrowly tailoring the error correction process to correct clerical errors without reopening portions of the rulemaking process, but it expressed it opposition to the proposed amendments contained within the NOPR and questioned the legality of the rulemaking in light of the Ninth Circuit's opinion. 4 (A.O. Smith, No. 08 at p. 1)

Separately, one individual commenter supported the rule in its entirety and explained that the proposal offered a good way for the Department to “remain as transparent as possible with the public” and maintain a relationship that allowed for public involvement in the rulemaking process. This commenter supported the existence of a method to correct and amend documents to more accurately report data relevant to DOE activities and projects. (Richardson, No. 02 at p. 1)

In the NOPR, DOE clarified that the Secretary was not, and is not, under a mandatory duty to post pre-publication final rules online, but to do so was, and is, a discretionary and voluntary act. DOE is not compelled by statute to offer such a procedural step. Therefore, DOE proposed amending 10 CFR 430.5(c) to account for the Secretary's discretion to post energy conservation standard final rules for error correction review. 85 FR 64071, 64073. As discussed further in the Section-by-Section Analysis, DOE is adopting this proposal to amend 10 CFR 430.5(c) in this final rule.

Furthermore, DOE initially proposed to clarify that the ECR does not create a non-discretionary duty to publish in the Federal Register a pre-publication final rule that has been posted in accordance with the error correction process. 85 FR 64071, 64074. However, DOE has determined it will retain the language currently found in 10 CFR 430.5(f). DOE notes that while the ECR provides a means by which interested parties may notify DOE of potential errors found in the regulatory text of a pre-publication final rule document that has been posted for public viewing, it is not a means for raising issues relating to the determinations and conclusions made by the Secretary in an energy conservation standard rulemaking. The posting of an energy conservation standards final rule signals the end of DOE's substantive analysis and decision-making regarding the applicable standards. Therefore, upon conclusion of the error correction process, DOE will submit a final rule, correcting any identified errors, to the Federal Register for publication in accordance with the requirements in 10 CFR 430.5(f). DOE's decision not to amend 10 CFR 430.5(f) at this time also recognizes the narrow scope and purpose of the error correction process, which DOE notes is separate from the Department's policy-making discretion.

Some commenters asserted that the NOPR mistakenly relied on EPCA's anti-backsliding provision, 42 U.S.C. 6295(o)(1), to justify the amendments proposed. The Joint Industry Commenters argued that DOE fundamentally misunderstands the anti-backsliding rule, which causes the premise behind the error correction process to be faulty. If there is an error in the analysis provided for an energy conservation standard, these commenters argue that the standard is not justified under EPCA's required economic and technical justifications. In their view, this would mean that the anti-backsliding provision cannot legally be used to maintain the standard. (Joint Industry Commenters, No. 03 at p. 6) They urged DOE to determine that it is authorized to correct errors in its analysis at any point if the errors lead to an energy conservation standard that is not justified under EPCA. While this would ultimately make the error correction process unnecessary, it would result, according to the commenters, in a better reading of EPCA— i.e., that the anti-backsliding provision does not limit DOE from correcting standards that were not actually justified in the first place. (Joint Industry Commenters, No. 03 at pp. 6-7) GEA also noted that EPCA's anti-backsliding provision does not prevent error correction and that any concern regarding a reduction in efficiency requirements through error correction is outweighed by the importance of maintaining the overall integrity of the energy conservation program. (GEA, No. 07 at p. 2)

Under EPCA, DOE may not prescribe any amended standard that either (1) increases the maximum allowable energy use (or water use in the case of certain types of water products and equipment) or (2) decreases the minimum require energy efficiency of a covered product or covered equipment. (42 U.S.C. 6295(o)(1)) Although DOE agrees with commenters that retaining flexibility to correct any errors is important for integrity of the energy conservation program, industry commenters' reading of EPCA's anti-backsliding provision is inconsistent with Abraham' s reading of that provision. See NRDC v. Abraham, 355 F.3d 179, 196 (2d Cir. 2004) (noting that “publication [of an energy conservation standard] must be read as the triggering event for the operation of section 325(o)(1).”). In light of Abraham, proceeding in the manner suggested by these commenters presents the risk that a reviewing court would invalidate an attempt by DOE to correct an error after publication of a final rule if the result of that correction was a standard with a greater maximum allowable energy use or decreased required energy efficiency as compared to the final rule that contained the error. Regardless of the reading that should be ascribed to the anti-backsliding provision, DOE concludes that the adoption of the ECR process (as revised by this rule) will be helpful in minimizing the risk that DOE may inadvertently adopt a final rule containing an objective error.

Further, DOE's efforts to address errors as part of the ECR's process are necessarily limited to addressing errors that affect the amended standards' regulatory text prior to the publication of a final rule amending the energy conservation standards for a covered product or covered equipment. To the extent that an error appears outside of the posted regulatory text of a draft pre-publication document, such as in a supporting rulemaking document it authored ( e.g., technical support document), DOE may, under its own discretion, make corrections to those documents, but these types of issues will be handled on an individual basis as appropriate outside of the ECR process.

DOE also received comments on other topics. NRDC/ASAP noted that nothing in the proposal conferred to DOE the authority to delay a rule or impact a standard the Department must select other than by providing an opportunity for DOE to correct any inadvertent mistakes. They suggested DOE add language to the ECR to explicitly state that the rule does not disturb or modify any of DOE's statutory obligations. (NRDC/ASAP, No. 06 at p. 1) They further suggested that DOE clarify in the final rule regarding the timeline and general procedures for error correction, including specifying when a rule would be made available for review, the duration of the review period, and whether the Department envisioned initiating a second error correction process for a pre-publication draft document. (NRDC/ASAP, No. 06 at p. 2)

A.O. Smith claimed that the proposal would have significant impacts on manufacturers because it would allow for the rulemaking process to be “reopened in perpetuity” by not limiting the Secretary's authority, would allow for the introduction of new data, additional analyses, and would create the potential for a revised final decision to result if an error is identified. (A.O. Smith, No. 08 at p. 2) Alternatively, A.O. Smith supported the original 2016 ECR, which ensured any request “must identify the claimed error, explain how the record demonstrates the regulatory text to be erroneous, and state what the corrected version should be.” (A.O. Smith, No. 08 at p. 2)

The ECR does not permit DOE to ignore EPCA's statutory deadlines or other applicable deadlines when finalizing a rulemaking action, and it is within DOE's authority to re-evaluate the document within the applicable deadline for that rulemaking. Nothing in the ECR authorizes DOE to circumvent statutory or other applicable deadlines. Additionally, when an energy conservation standards final rule is posted for error correction review, its posting signals the end of DOE's substantive analysis and decision-making regarding the applicable standards, thus eliminating any concern that the rulemaking would be reopened in perpetuity. Accordingly, the ECR remains limited to identifying errors relating to the standards regulatory text in a pre-publication draft.

In the NOPR, DOE proposed to amend 10 CFR 430.5(a) by renaming the section and separating the section into two separate subsections that address the purpose and scope of the regulations in this section. The proposed subsections described (1) the procedures through which the Department may accept and consider public input for review of a pre-publication final rule document's regulatory text, and (2) the scope of the procedure that would be available. 85 FR 64071, 64072-64073.

DOE received comments opposing its proposal to clarify that the error correction process was strictly a voluntary activity on the part of the Department and did not create a legal obligation to offer the public an additional review period for energy conservation standards beyond that which is already provided under EPCA and other applicable provisions of the Administrative Procedure Act.

The Joint Industry Commenters disagreed with this aspect of the proposal. They argued that the ECR's review process should not be a discretionary activity and must provide stakeholders with a process to ensure no errors in the analysis exist before publishing a rule that would create an unjustified standard. (Joint Industry Commenters, No. 03 at p. 2) APGA/Spire similarly suggested that DOE strike the word “voluntary” from § 430.5(a)(1) as proposed because there are no mandatory submissions for the public at large, making it redundant to characterize such submissions as “voluntary.” (APGA/Spire, No. 05 at p. 2) GEA asserted that the proposal lacked justification for leaving the implementation of the ECR review process solely to DOE's discretion. (GEA, No. 07 at p. 2) Lennox opposed characterizing the ECR review as voluntary because it would limit the rule and undermine the critical protections provided to industry and stakeholders from inaccurate rules being made final. (Lennox, No. 04 at p. 4, 1) In its view, the ECR should be mandatory for all energy conservation standards as it would help avoid litigation costs resulting from efforts to correct erroneous rules. Lennox added that requiring all energy conservation standard rulemakings to undergo the error correction process would enable DOE to avoid errors that would disrupt the supply chain and avoid the risk of consumers being harmed through mislabeled equipment. (Lennox, No. 04 at p. 2) In addition to there being a clear need for error correction review to ensure that all energy conservation standards are technologically feasible and economically justified under 42 U.S.C. 6295(o)(2), Lennox argued that making the error correction process voluntary would destroy public confidence in that process. (Lennox, No. 04 at pp. 3-4)

GEA challenged DOE's decision to limit the scope of the error correction process to final rules and argued DOE should determine that it is authorized to correct errors in its analysis at any time if the error would result in a standard not justified under EPCA. GEA suggested that DOE make the error correction process mandatory for all energy conservation standard rulemakings. In its view, doing so would provide consistency, transparency, and predictability to the rulemaking process, which decreases uncertainty and the regulatory burden. (GEA, No. 07 at p. 2)

NRDC/ASAP supported DOE's proposal to make the review process discretionary and asserted that some circumstances may require waiving the normal process, making a shorter review period or no review period justified. They encouraged DOE to include in the final rule a clarification that some products may warrant shorter review periods. (NRDC/ASAP, No. 06 at 2)

DOE's proposal also noted that it would continue to exclude energy conservation standards set through the issuance of a direct final rule pursuant to section 325(p)(4) of EPCA (42 U.S.C. 6295(p)(4)). 85 FR 64071, 64073. The Joint Industry Commenters and Lennox supported this approach because, in their view, EPCA (through section 325(p)(4)) already provided the necessary opportunity for review and comment prior to the finalization of such rules. (Joint Industry Commenters, No. 03 at p. 2; and Lennox, No. 04 at p. 4)

EPCA mandates certain procedures that DOE must follow in its rulemakings. See 42 U.S.C. 6295(p). Beyond the procedures mandated in EPCA, the Secretary is under no statutory obligation to provide the public with an additional opportunity to submit error correction requests on any document. DOE has considered the approach of turning this process into a mandatory one for all energy conservation standard rulemakings, as suggested by these commenters, but notes that doing so would be both impractical and unnecessary. DOE notes that the public has many opportunities to review and provide input on EPCA rulemakings already during the robust rulemaking process as provided by EPCA and other applicable provisions of the Administrative Procedure Act. Additionally, DOE recognizes that situations may arise, such as complying with a judicial decree, that would necessitate shortening or waiving of the error correction process. DOE reminds commenters that opening an energy conservation standard rulemaking to error correction review is only to confirm that no errors exist in the regulatory text prior to anticipated publication; it is not intended for parties to argue the findings and conclusions of the rulemaking. The voluntary nature of the ECR provides the Secretary the flexibility to subject specific rulemakings to one last review and not unnecessarily elongate the rulemaking process for energy conservation standard rulemakings.

DOE's proposal to amend 10 CFR 430.5(a) was intended to describe an error correction process that is an optional and voluntary, specifically on the part of DOE. However, given DOE's decision in this final rule to retain the current regulatory requirements found in 10 CFR 430.5(f), which prescribe the steps DOE will take to publish a final rule upon conclusion of the error correction process, DOE no longer believes it is necessary at this time to extensively revise the text in 10 CFR 430.5(a), except to clarify DOE is under no legal obligation to offer the public this additional error correction process from the outset. Accordingly, DOE is retaining the current regulatory provisions contained in 10 CFR 430.5(a), with the exception of adding the term “optional” before “procedure” and “may” before “accept and consider” to clarify it is within the Secretary's discretion to allow for an error correction review of a final energy conservation standard rule.

DOE proposed amending the definition of “Error” found in 10 CFR 430.5(b) to more narrowly define it as meaning an objective mistake in the regulatory text of a pre-publication final rule document that may result in the establishment or amendment of an energy conservation standard. DOE also proposed replacing the term “Rule” with the term “Pre-publication draft.” 85 FR 64071, 64077.

The Joint Industry Commenters opposed narrowing the definition of “Error” and argued that substantial errors can occur outside of the regulatory text and its erroneous results will not be explicit or disclosed in the regulatory text. They argued that the review should be extended to include errors that may exist in the Technical Support Document as well as the preamble to a final rule as these errors could also result in arbitrary and capricious standards. (Joint Industry Commenters, No. 03 at pp. 2-3)

It is DOE's current practice to post a pre-publication copy of a rulemaking document online, prior to the rule's publication in the Federal Register , for the public to access. This action is separate and distinct from the error correction process. Given that DOE uses the term “pre-publication” when posting and disseminating these documents, DOE believes it may create potential confusion for DOE to adopt the proposed definition for “pre-publication draft” in this final rule. Additionally, the use of the term “draft” may also suggest that the final rule document is open to further deliberations and policy considerations. Accordingly, DOE is not adopting its proposal to amend 10 CFR 430.5(b), and is retaining the current definitions found in 10 CFR 430.5(b) in this final rule.

However, DOE's decision to not amend 10 CFR 430.5(b) does not diminish the intent of the ECR, which is to minimize the potential risk of finalizing and publishing the regulatory text of an energy conservation standard with an apparent error that establishes a level that was not intended by DOE. With the utilization of the ECR, DOE is seeking to avoid the need for any subsequent rulemaking, correcting that error, that might violate the anti-backsliding provision of 42 U.S.C. 6295(o)(1). Therefore, by addressing concerns with the draft regulatory text of an energy conservation standard before that text is finalized, DOE can significantly reduce the risk of litigation over an unintended error. This same difficulty does not exist for an error identified in the preamble text or Technical Support Document published in support of an energy conservation standard. For that, DOE can issue a correction to remedy such a mistake. And in the event an error appears in a Technical Support Document for a given rule, if DOE agrees that error impacts the resulting standard that DOE intended to adopt (as reflected in a posted draft document), then DOE retains the authority to make the appropriate correction in that posted draft document.

The NOPR proposed revising 10 CFR 430.5(c) to clarify that the Secretary was not, and is not, under a mandatory duty to post pre-publication final rules online for error correction review, but to do so was, and is, a discretionary and voluntary act. If the Secretary chooses to post a final rule online for error correction review, the document would be available for 45 days, but the Secretary in his or her discretion may shorten or lengthen that time period. DOE also proposed revising 10 CFR 430.5(c) to clarify that the ECR does not impose a deadline by which the Secretary must determine whether to establish or amend an energy conservation standard, or when the Secretary must submit a final rule for publication in the Federal Register . DOE further proposed revising the text in the disclaimer notice, which is posted along with a final rule made available for error correction review, to explain that the Department may conduct additional review of the regulatory test prior to finalizing a potential energy conservation standard to ensure that the text is consistent with the Secretary's intent and with data and analysis available at the time of posting. 85 FR 64071, 64073.

APGA/Spire objected to this aspect of the proposal, arguing that every final rule should be posted routinely since DOE would have complete discretion on what to do with any comment received under paragraph (e). (APGA/Spire, No. 05 at p. 2) The Joint Industry Commenters objected to the proposal's failure to obligate DOE to post pre-publication draft final energy conservation standard rules. In their view, it is critical that the public be given the opportunity to review these types of documents for errors that could result in a standard that is not, in fact, technically or economically justified. (Joint Industry Commenters, No. 03 at p. 3) They added that the Secretary should not retain the discretion to determine whether to post pre-publication drafts because any rulemaking that may impact an energy conservation standard should be subject to error correction review. (Joint Industry Commenters, No. 03 at p. 4) These commenters also supported posting a pre-publication draft for the proposed continuation of the 45-day review period, but disagreed with the proposal's inclusion to provide the Secretary the discretion to adjust the length of the review period. They suggested there should be a set period of time that the rule is posted and the Secretary may extend that time period if needed, but that this time period cannot be limited to less than the 45-day window on a whim. (Joint Industry Commenters, No. 03 at p. 3)

Lennox also objected to a shortening of the 45-day review period because energy conservation standard rulemakings are complex and that modifying the ECR to permit a shorter review period would “gut” the ECR process by allowing the Secretary to unilaterally provide inadequate time for a meaningful review. (Lennox, No. 04 at p. 4) Other commenters suggested that DOE include a firm minimum time limit for error correction requests to be considered, such as 30 days. (NRDC, et al., No. 06 at p. 1)

Furthermore, Joint Industry Commenters and Lennox were supportive of DOE's proposal to retain discretion on whether a pre-publication draft that has undergone error correction review is submitted for publication as a final rule. (Joint Industry Commenters, No. 03 at p. 4; Lennox, No. 04, at p. 1) The Joint Industry Commenters agreed with DOE's clarification to remove any inference of an implied timeline for the Secretary's decision to publish a potential rule that was subject to the error correction process and that the Secretary should retain discretion to determine the degree to which the document may or may not be amended. (Joint Industry Commenters, No. 03 at p. 4) These commenters agreed with DOE that the error correction process should not obligate the Secretary to publish a document simply because that document has completed the error correction process. They asserted that DOE has broad authority to execute its statutory obligations and that the ECR's scope is limited only to the opportunity for stakeholders to comment on errors and DOE's obligation to consider those comments. (Joint Industry Commenters, No. 03 at p. 4)

The Joint Industry Commenters also supported DOE's proposed revision to the disclaimer in § 430.5(c)(3) that DOE may conduct additional review of the regulatory text prior to finalizing a standard to ensure that the text itself is consistent with the Secretary's intent and relevant data and analysis available at the time of posting. They also supported DOE's proposed revision emphasizing that it is “within the 'Secretary's discretion to determine the appropriate remedy” for an error identified during the error correction process. (Joint Industry Commenters, No. 03 at p. 4)

As previously noted, EPCA already specifies the procedures DOE is mandated to follow in an energy conservation standard rulemaking. The error correction process is an extra step that DOE is choosing to adopt as a tool to help DOE avoid promulgating a final energy conservation standard rule with an apparent error. It is DOE's judgment that not all energy conservation standard rulemakings will need to undergo a 45-day review period. For example, there may be instances where an unanticipated legal obligation may arise, or a statutory deadline may be approaching, that may necessitate a modification to a 45-day review period. While DOE will continue to strive to provide a 45-day review period, retaining flexibility to account for case-by-case circumstances would enable DOE to continue offering the public this additional review opportunity while accounting for those circumstances where a 45-day review period is not warranted or feasible. Upon posting of a pre-publication draft, the public will be notified of the length of the review period for that specific energy conservation standard final rule.

Moreover, posting a pre-publication final rule for review under this process is an additional step in the already comprehensive review process the Department follows when developing a standard in accordance with EPCA's requirements. Providing this step—which itself is a discretionary act by DOE—offers the public with a final opportunity, not required under EPCA, to help DOE in verifying that no errors in the regulatory text went unnoticed and unaddressed. Although DOE anticipates that this step would be routinely provided, it may not be necessary to do so for every energy conservation standard rulemaking and requiring it in those instances where it would be unnecessary or impractical to do so would unnecessarily restrict DOE's flexibility to carry out its statutory obligations under EPCA or other legal obligations in an efficient manner. Rigidly applying a mandatory minimum review period requirement not only ignores the potential for conflicts with preexisting statutory deadlines but also assumes that all energy conservation standard rulemakings are the same. Not every energy conservation standard rulemaking will require this additional review period and to mandate one may unnecessarily lengthen the rulemaking process.

With these considerations in mind, DOE is adopting its proposal to amend 10 CFR 430.5(c) to clarify that the Secretary was not, and is not, under a mandatory duty to post pre-publication final rules online for error correction review, but to do so was, and is, a discretionary and voluntary act. DOE is also adopting its proposal to amend 10 CFR 430.5(c) to note that it will ordinarily post the pre-publication final rule online for a period of 45 calendar days, but noting that the period for review may be shortened or lengthened to best serve the needs of that rulemaking in accordance with DOE's statutory or other legal obligations.

While DOE is adopting the aforementioned proposals in this final rule, DOE is not adopting the remaining revisions proposed in the NOPR for 10 CFR 430.5(c)(2). Those revisions concerned the submittal of rules for publication and DOE's authority to amend standards prior to publication. DOE's decision to not adopt those proposed revisions is due to repetitive nature of some of the language, as well as the decision to retain the current requirements in 10 CFR 430.5(f) and (g). Section 430.5(c) as adopted in this final rule already expresses that the Secretary is not obligated to post pre-publication final rules on a publicly accessible website for public review. Adopting the proposed revision that it would be in the Secretary's discretion both before and after posting of a pre-publication final rule to determine whether to establish or amend an energy conservation standard would conflict with DOE's decision to retain the current requirements in 10 CFR 430.5(f) and (g). Therefore, to maintain the current numbering in 10 CFR 430.5(c), DOE has made slight clarifying amendments to revise and renumber the proposed regulatory text that DOE is adopting in this final rule.

Furthermore, due to DOE's decision to retain the current definitions in 10 CFR 430.5(b), DOE is retaining the current disclaimer notice text found in 10 CFR 430.5(c)(3).

In the NOPR, DOE explained how the public could submit a request for error correction, what errors will be reviewed, and identified the evidence the Department would accept in considering such a request under 10 CFR 430.5(d). Specifically, DOE proposed to clarify that the Secretary would not be obligated to take an action, and would have the discretion to choose whether to correct an error properly identified and determined to be consequential. The proposal also explained that the review would be limited to identifying Errors in the regulatory text and not be expanded to include issues related to the policy decision itself; policy decisions would continue to remain strictly within the discretion of the Secretary. 85 FR 64071, 64073.

The Joint Industry Commenters opposed DOE's proposal for 10 CFR 430.5(d) and argued that the Secretary lacks the discretion to not amend a consequential or inconsequential error properly identified. While the commenters agreed that it is within the Secretary's discretion in deciding not to act when an inconsequential error is identified, they asserted that in those instances where an error is uncorrected, DOE should explain its reasons for doing so. (Joint Industry Commenters, No. 03 at p. 4) When deciding not to act on a consequential error, the Joint Industry Commenters argued that the Secretary should explain why no action is being taken. (Joint Industry Commenters, No. 03 at pp. 4-5) The Joint Industry Commenters reiterated that DOE should not limit error review to the regulatory text and should consider addressing errors in the technical support document and the preamble if the error substantially affects the resulting standard in the regulatory text. (Joint Industry Commenters, No. 03 at p. 5) The Joint Industry Commenters also argue that the evidence used to substantiate the error should not be limited to the existing rulemaking record—any evidence that may substantiate an error should be permitted, including evidence that is not part of the existing record. (Joint Industry Commenters, No. 03 at p. 5)

Determining whether a purported error in a pre-publication final rule is, actually, an error, and, if so, whether such error is consequential or inconsequential—along with the decision on how to handle that error—resides solely within the Secretary's discretion under 10 CFR 430.5(d)(1). The Secretary is also under no obligation to consider a request that does not comply with 10 CFR 430.5(d). As a practical matter, DOE likely would consider an inconsequential error as one not meriting a response, while a consequential error likely would be addressed in the form of a correction to the relevant regulatory text.

While some commenters suggested that DOE accept evidence not previously included in the record, DOE again emphasizes that the error correction process is the final step immediately prior to when DOE submits a document to the Federal Register for publication. At this stage, all of the information pertaining to the substance of the rulemaking should have already been submitted to DOE for its consideration. If DOE were to permit the submission of additional information at this late juncture for consideration, the risk of parties withholding valuable and useful information for DOE to consider until the error correction process would be considerably higher, resulting in a process that would adversely impact the rulemaking process by delaying finality to the rulemaking. Moreover, DOE wishes to ensure that parties provide as much information as possible during the relevant and appropriate stages of a given rulemaking—that is, during any pre-NOPR stages, which DOE typically offers, as well as in response to a designated comment period for a NOPR or supplemental NOPR. Commenters have these multiple opportunities to bring data or information to the Department's attention during the rulemaking process. Accordingly, DOE is declining to adopt the approach suggested by the commenters and will continue to restrict consideration of available data and evidence to information that is already part of the relevant rulemaking record.

In the NOPR, DOE explained that this section would continue to describe the course of action that the Department may take in the event that a request for correction has appropriately identified an error. DOE proposed new text explaining the Secretary's authority to determine the appropriate remedy for an error identified and the Secretary's discretion to initiate additional review of the regulatory text so that it mirrors the Secretary's intent. 85 FR 64071, 64074

In response to the NOPR, Joint Industry Commenters recommended that DOE respond to every error correction request submitted even if the Secretary decides not to act under 10 CFR 430.5(e). In their view, the requester should be notified that its request for review was received, considered, and provided a rationale for why the Department decided not to act upon the request. (Joint Industry Commenters, No. 03 at pp. 5-6)

The Joint Industry Commenters further concurred with DOE's proposal to clarify that the ECR does not establish any obligation on the Secretary to publish a pre-publication draft document upon completion of the error correction process. Joint Industry Commenters acknowledged timing for publication remains within the Department's discretion, which are separate and apart from the error correction process. (Joint Industry Commenters, No. 03 at p. 5)

In light of DOE's decision to not amend the regulatory requirements currently found in 10 CFR 430.5(f), as discussed in more detail below, DOE will be retaining the regulatory text currently found in § 430.5(e). In DOE's view, the ECR process is designed solely as an additional review period to address errors that may be contained in the regulatory text of a draft pre-publication document. In those cases where DOE agrees that a properly submitted error correction request identified an error in the posted text and that error requires correcting, DOE's response will come in the form of DOE's correction of that error. If DOE concludes that any request for error-correction is not valid, and if it has identified no errors on its own, DOE will proceed to submit the rule for publication in the Federal Register in the same form it was previously posted. By doing so, the Department will effectively be rejecting any error-correction requests it has received, and will ordinarily not respond directly to a requester or provide additional notice regarding the request.

Compelling DOE to individually address each error correction request submitted in instances where no change is merited is not an appropriate use of DOE's limited resources. Moreover, in DOE's experience, many of the error correction requests that DOE receives are transmitted at the end of the error correction process and often do not identify what this rule defines as “Errors.” Therefore, at this time, DOE declines to implement any requirements that it affirmatively address every error correction request received. DOE will, however, docket all properly submitted error correction requests in the appropriate docket to ensure that the public is aware of any properly submitted requests that were received.

DOE notes that commenters continue to remain free to submit input to the relevant docket throughout the duration of the rulemaking to help inform DOE regarding any aspects of that rulemaking.

In the NOPR, DOE proposed revising 10 CFR 430.5(f) to prevent the inference that publication in Federal Register is the only outcome available at the conclusion of the error correction process. 85 FR 64071, 64074. While some commenters asserted that the Secretary is not obligated to submit a pre-publication final rule for publication in the Federal Register at the end of the review process and that it remains within the Secretary's discretion to determine what happens once the review period concludes ( see Joint Industry Commenters, No. 03 at p. 5-6; Lennox, No. 04 at 5; NRDC/ASAP, No. 06 at p. 1), one commenter opposed DOE's proposal and questioned the legality of the rulemaking considering a decision from the United States Court of Appeals for the Ninth Circuit. Natural Resources Defense Council v. Perry, 940 F.3d 1072 (9th Cir. 2019) (A.O. Smith, No. 8 at p. 1) Additionally, others argued that DOE is obligated to provide a publicly available statement detailing how any properly received requests were handled. (Lennox, No. 04 at p. 4) Commenters stated that if DOE is unable to fix an error identified, then DOE must provide a consistent process to help ensure energy conservation standards are supported by error-free analysis that is justified under EPCA. (Joint Industry Commenters, No. 03 at p. 6)

At this time, DOE is retaining the current regulatory text found in 10 CFR 430.5(f), notwithstanding two clarifications and two minor non-substantive changes to reflect updated cross-references to amended 10 CFR 430.5(c). As explained in the NOPR, the Ninth Circuit held that 10 CFR 430.5(f) created a non-discretionary duty to submit draft rules ( i.e., a pre-publication draft) for publication in the Federal Register within 30 days of the close of the error correction submission period. Although DOE declines to adopt its proposal to amended 10 CFR 430.5(f) as discussed in the NOPR, DOE continues to maintain that the error correction process is intended to correct errors, as defined in 10 CFR 430.5(b), and is separate from DOE's policy-making discretion.

In this final rule, DOE provides two clarifying amendments to the current regulatory text found in 10 CFR 430.5(f). Specifically, DOE amends 10 CFR 430.5(f)(2) to remove the term “in due course.” The use of the term “in due course” in 10 CFR 430.5(f)(2) could imply that a final rule for which DOE does not receive any properly filed error correction requests and determines that no corrections are necessary, is subject to a different or longer time frame for submission for publication in the Federal Register than a final rule for which DOE has received one or more properly filed requests and determines that no corrections are necessary ( see 10 CFR 430.5(f)(1). This is not the case. In either scenario, DOE expects that the rule will be submitted for publication in the Federal Register within the 30 days allotted for rules that actually require correction prior to submittal in 10 CFR 430.5(f)(3). DOE also amends 10 CFR 430.5(f)(3) to add “or discovers an Error on the Secretary's own initiative.” This amendment addresses the scenario of when the Secretary discovers an Error on his or her own initiative and determines a correction is necessary—a scenario that had only been addressed in 10 CFR 430.5(e), but has not been explicitly included as a scenario in 10 CFR 430.5(f).

DOE will continue to consider the impact of the Ninth Circuit decision on 10 CFR 430.5(f), as well as any impact a proposed change to § 430.5(f) would have on stakeholders in providing certainty and transparency during the error correction process. Should DOE desire to amend the language in paragraph (f) of this section, DOE will consider and follow the appropriate rulemaking procedures for making such amendments. The decision to maintain the current language in § 430.5(f) does not in any way restrict, limit, diminish, or eliminate the Secretary's discretion to determine whether to establish or amend an energy conservation standard, or to determine the appropriate level at which to amend or establish any energy conservation standard.

DOE proposed renumbering 10 CFR 430.5(g) and (h) and including new text to reaffirm that a pre-publication document is not a final rule within the meaning of EPCA. 85 FR 64071, 64073. DOE received comments supporting its proposed modification to 10 CFR 430.5(g). The Joint Industry Commenters supported the reaffirmation that the publication of such drafts did not finalize the substance of the rule or signal an end to the rulemaking process. (Joint Industry Commenters, No. 03 at p. 6)

While DOE acknowledges the comments it received in support of this proposal, DOE has decided to retain the current regulations at 10 CFR 430.5(g) and (h). Since DOE's proposal for 10 CFR 430.5(g) was simply intended to reorganize and reaffirm the language currently found in 10 CFR 430.5(g) and (h), DOE believes retaining the current requirements would not be inconsistent with the intent and purpose of its proposal. Therefore, DOE is retaining the current regulations at 10 CFR 430.5(g) and (h) in this final rule.

Agency rules of procedure and practice, such as the one described in this document, are not subject to the requirement to provide prior notice and an opportunity for public comment pursuant to authority at 5 U.S.C. 553(b)(A). DOE notes that a rule of this nature is also not a substantive rule subject to a 30-day delay in effective date pursuant to 5 U.S.C. 553(d). Nonetheless, DOE voluntarily offered an opportunity to the public to make comments on the changes set forth in this final rule.

This regulatory action is not a “significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, this action was not subject to review under that Executive order by the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB).

The revisions contained in this regulatory action are designed to clarify DOE's process with respect to its error correction process for addressing errors identified in the regulatory text of a draft pre-publication document of a potential rule that would establish or amend the energy conservation standards of a regulated product or equipment. These revisions clarify the manner in which DOE will implement this error correction process and affirms the agency's retention of its discretion with respect to the handling of these pre-publication documents and any comments received regarding potential errors contained in the relevant regulatory text. These revisions would not impose any regulatory costs or burdens on stakeholders, nor would they in any way limit public participation in DOE's rulemaking process.

The Regulatory Flexibility Act (5 U.S.C. 601, et seq. ) requires preparation of an initial regulatory flexibility analysis (“IRFA”) and a final regulatory flexibility analysis (“FRFA”) 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. The proposed rule was not subject to the requirement to provide prior notice and an opportunity for public comment, therefore, this final rule is not subject to the analytical requirements of the Regulatory Flexibility Act.

This final rule does not contain a collection of information for purposes of the Paperwork Reduction Act.

DOE has determined that this final rule falls into a class of actions that are categorically excluded from review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ) and DOE's implementing regulations at 10 CFR part 1021. Specifically, this rule is strictly procedural and is covered by the Categorical Exclusion in 10 CFR part 1021, subpart D, paragraph A6. Accordingly, neither an environmental assessment nor an environmental impact statement is required.

Executive Order 13132, “Federalism,” 64 FR 43255 (Aug. 10, 1999), imposes certain requirements on Federal agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. The Executive order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process that it will follow in the development of such regulations. 65 FR 13735. DOE has examined this final rule and has determined that it 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. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the products and equipment that would be subject to this proposed rule. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297(d)) No further action is required by Executive Order 13132.

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

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). For a regulatory action resulting in a rule that may cause 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 (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a proposed “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect small governments. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820; also available at www.energy.gov/gc/office-general-counsel. DOE examined this final rule according to UMRA and its statement of policy and determined that the final rule contains neither an intergovernmental mandate, nor a mandate that may result in the expenditure of $100 million or more in any year, so these requirements do not apply.

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

DOE has determined, under Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (Mar. 18, 1988), that this regulation will not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.

Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516, note) provides for Federal agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has reviewed this final rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.

Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OIRA at OMB, a Statement of Energy Effects for any significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that: (1) is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (3) is designated by the Administrator of OIRA as a significant energy action. For any significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use if the regulation is implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.

This final rule is not a significant energy action because the ability to correct regulations will not, in itself, have a significant adverse effect on the supply, distribution, or use of energy. Moreover, it would not have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as a significant energy action by the Administrator of OIRA. Accordingly, DOE has not prepared a Statement of Energy Effects.

As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of this rule before its effective date. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 804(2).

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

This document of the Department of Energy was signed on March 25, 2024, by Jeffrey Marootian, Principal Deputy Assistant Secretary for Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

For the reasons stated in the preamble, DOE amends part 430 of Chapter II of Title 10, Code of Federal Regulations as set forth below:

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 757-200, -200CB, and -300 series airplanes. The NPRM published in the Federal Register on June 1, 2023 (88 FR 35783). The NPRM was prompted by a report of a crack at fuselage STA 1640 frame web common to the lower hinge intercostal tee clip center hole of the upper fastener row. In the NPRM, the FAA proposed to require a maintenance records check for existing repairs at STA 1640, repetitive UT inspections for cracking of the frame web, and applicable on-condition actions. The FAA is issuing this AD to address possible undetected cracking in the STA 1640 frame web common to the lower hinge intercostal tee clip center hole of the upper fastener row. Such cracking, if not addressed, could result in the inability of a principal structural element to sustain limit loads which could adversely affect the structural integrity of the airplane.

The FAA received comments from Air Line Pilots Association, International, who supported the NPRM without change.

The FAA received additional comments from seven commenters, including Aviation Partners Boeing (APB), Boeing, Delta Air Lines (DAL), European Air Transport GmbH (DHL), FedEx Express, United Airlines (UAL), and VT Mobile Aerospace Engineering, Inc. (VT MAE). The following presents the comments received on the NPRM and the FAA's response to each comment.

Boeing requested that the location of the cracking be corrected from “inboard and center holes” to “center hole” of the upper fastener row in the Summary and Background of the NPRM, and paragraph (e) of the proposed AD. Boeing said that cracking was found only in the center hole.

The FAA agrees. The correction has been made in the specified sections of this AD.

VT MAE proposed that no additional inspection be required other than the inspection specified in VT MAE 15-Pallet Maintenance Planning Data (MPD) Supplement 757SF-MPD-01 for airplanes converted per VT MAE Supplemental Type Certificate (STC) ST04242AT. VT MAE asserted that Boeing has performed analysis of the modified airplanes, including the new STA 1640 frame, which is inspected as part of the VT MAE MPD Supplement 757SF-MPD-01.

The FAA disagrees with the commenter's request because sufficient data was not submitted to substantiate that the inspections specified in VT MAE MPD Supplement 757SF-MPD-01 would provide an acceptable level of safety. Under the provisions of paragraph (i) of this AD, however, the FAA will consider requests for approval of alternative actions and compliance times if sufficient data are submitted to substantiate that the change would provide an acceptable level of safety. The FAA has not changed this AD in this regard.

DAL requested that paragraph (h)(3) of the proposed AD be amended or revised to clarify whether aircraft configured with STC ST01518SE but without winglets require the specified reduction in applicable compliance times and repeat intervals. DAL stated that this approved configuration was not clearly addressed in the proposed AD.

The FAA agrees to clarify. Because a longer compliance time for the identified configuration (STC ST01518SE without winglets) has not been evaluated, all configurations with the STC ST01518SE modification must be included in the requirement. The FAA has revised paragraph (h)(3) of this AD to specify that airplanes modified in accordance APB STC ST01518SE, with or without blended or scimitar blended winglets installed, have the reduced compliance time. However, as specified in paragraph (i) of this AD, the FAA will consider requests for approval of alternative actions and compliance times if sufficient data are submitted to substantiate that the change would provide an acceptable level of safety.

Boeing requested that the Background section of the NPRM be revised to clarify the sequence of events and the associated service documents that led to detection of the cracking that prompted the NPRM. Boeing asserted that the NPRM indicated that the crack was found as a result of inspections required by AD 2020-20-10, Amendment 39-21266 (85 FR 63002, October 6, 2020) (AD 2020-20-10), but the crack was actually found as a result of inspections required by AD 2018-06-07, Amendment 39-19227 (83 FR 13398, March 29, 2018) (AD 2018-06-07).

The FAA agrees that the AD number reference in the Background section of the NPRM described by Boeing should have been AD 2018-06-07 (which was superseded by AD 2020-20-10). However, since that portion of the Background section does not reappear in the final rule, no change to the final rule is necessary.

APB, DAL, and DHL proposed that APB Service Bulletin AP757-53-005 be incorporated into the final rule. APB, DAL, DHL, and UAL suggested that paragraph (h)(3) of the proposed AD be revised to extend the required time for compliance. APB explained that APB Service Bulletin AP757-53-005 is currently in approval review by an independent DER (Designated Engineering Representative) for submittal to the FAA, and this service information proposes less restrictive compliance times than specified by paragraphs (g) and (h)(3) of the proposed AD. DHL added that halving the compliance time for the initial inspection is more burdensome than halving the time for repetitive inspections, which can still be accomplished during base maintenance events. DAL and UAL added that the reduced initial inspection time would mean that the inspection could not occur during a regularly scheduled check, resulting in extended unscheduled ground time and increased costs for operators.

The FAA does not agree. Waiting for the review and approval of APB Service Bulletin AP757-53-005 would delay the rulemaking process. The urgency of the unsafe condition warrants issuing this AD as proposed because it adequately addresses the unsafe condition. Until APB completes its evaluation of airplanes with APB STC ST01518SE installed to determine an appropriate compliance time for the inspection, the conservative factor of 2 will apply to these airplanes. Under the provisions of paragraph (i) of this AD, however, the FAA will consider requests for approval of alternative compliance times if sufficient data are submitted to substantiate that the change would provide an acceptable level of safety. The FAA has not changed this AD in this regard.

UAL requested clarification on the NPRM as it does not give operators credit for airplanes on which the required inspection in Boeing Alert Requirements Bulletin 757-53A0121 RB, dated September 28, 2022, was already accomplished prior to release of the pending AD. UAL said they intend to start inspection as soon as possible, and not having any allowance for credit prior to AD release may drive some of UAL's Model 757 fleet into another round of the required inspection sooner than the required repetitive inspection time limit.

The FAA provides the following clarification. Paragraph (f) of this AD states that operators must comply with the requirements of the AD unless those actions have already been done, which negates the need to add the requested credit. Any repetitive actions must be done within the compliance times required by this AD. This AD has not been changed regarding this request.

VT MAE requested that no inspection be required for aircraft converted per ST03952AT that have a long inner chord strap at the STA 1640 fuselage frame. VT MAE and FedEx Express requested that no inspection be required for aircraft converted per VT MAE STC ST03562AT that have a long inner chord strap at the STA 1640 fuselage frame. The commenters asserted that the modified STA 1640 frame is identical to that of Boeing 757-200 special freighter airplanes, which are not included in Boeing Alert Requirements Bulletin 757-53A0121 RB, dated September 28, 2022. The commenters claimed that Boeing and the FAA stated that these special freighter-configured airplanes were not subject to cracking at the lower hinge intercostal tee clip. The commenters stated that the stresses in the inner chord are higher, and AD 2020-20-10 and Boeing Alert Service Bulletin 757-53A0108, Revision 1, dated July 17, 2019, would be able to detect the web cracks sooner.

The FAA agrees with the proposed change. For aircraft converted per VT MAE STC ST03562AT and ST03952AT that have a long inner chord strap at the STA 1640 fuselage frame, the modified STA 1640 frame is identical to that of Boeing 757-200 special freighter airplanes. Paragraph (h)(4) of this AD has been added to provide an exception stating that the actions of paragraph (g) of this AD are not required for Group 1 airplanes that have been converted from passenger to freighter configuration using VT MAE STC ST03562AT or ST03952AT that have a long inner chord strap at the STA 1640 fuselage frame.

VT MAE and FedEx Express requested the use of Group 4 inspections/methods/compliance times, given in Boeing Alert Requirements Bulletin 757-53A0121 RB, dated September 28, 2022, for the airplane having registration number N935FD, which was converted per VT MAE STC ST03562AT. The commenters noted that this airplane has a short inner chord strap at the STA 1640 fuselage frame, and that the modified STA 1640 frame is identical to the STA 1640 frame found on Boeing 757-200 special freighter airplanes, which are identified as Group 4 in Boeing Alert Requirements Bulletin 757-53A0121 RB, dated September 28, 2022.

The FAA agrees that the modified STA 1640 frame is identical to the STA 1640 frame found on Boeing 757-200 special freighter airplanes, identified as Group 4 in Boeing Alert Requirements Bulletin 757-53A0121 RB, dated September 28, 2022. The FAA has added paragraph (h)(5) of this AD to specify that airplanes modified in this manner should accomplish the actions for Group 4 airplanes at the applicable times for Group 4 airplanes, as specified in Boeing Alert Requirements Bulletin 757-53A0121 RB, dated September 28, 2022.

APB stated that Boeing does not have a delegation to approve repairs in areas affected by the scimitar blended winglet configuration of STC ST01518SE. APB also commented that approval by The Boeing Company Organization Designation Authorization (ODA), as specified in paragraph (i)(3) of the proposed AD, may not be given for an alternative method of compliance (AMOC) for repairs in those areas, but such approval must be obtained as specified in paragraph (i)(1) of this AD.

The FAA acknowledges and concurs with APB's assertions. However, no change to the AD is necessary. Paragraph (h)(2) of this AD states that AMOC approval be obtained using a method approved in accordance with the procedures specified in “paragraph (i)” of this AD, and does not limit approvals to the provisions of paragraph (i)(1) or (3) of this AD. Therefore, AMOC approval in accordance with paragraph (i)(1) or (3) of this AD would be provided based on whether the actions needing an AMOC apply to the APB design or the Boeing design.

The FAA reviewed the relevant data, considered any comments received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for minor editorial changes, and any other changes described previously, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

The FAA reviewed Boeing Alert Requirements Bulletin 757-53A0121 RB, dated September 28, 2022. This service information specifies procedures for a maintenance records check of the left- and right-side STA 1640 frame web between S-9 and S-20 for existing repairs; repetitive UT inspections of the frame web for any cracks; and applicable on-condition actions. On-condition actions include repair.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES section.

The FAA estimates that this AD affects 309 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA has received no definitive data on which to base the cost estimates for the on-condition repairs specified in this AD.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 767 airplanes. The NPRM published in the Federal Register on October 5, 2023 (88 FR 69107). The NPRM was prompted by a report of cracks on the forward entry door and forward service door cutout aft lower corner fuselage skin and bear strap. In the NPRM, the FAA proposed to require repetitive inspections for cracking at the affected area, and applicable on-condition actions. The FAA is issuing this AD to address undetected fatigue cracks which, if not addressed, could result in a principal structural element's loss of limit load capability, adversely affecting the airplane's structural integrity.

The FAA received comments from three commenters who supported the NPRM without change.

The FAA received additional comments from five commenters, including ABX Air, All Nippon Airways, Boeing, United Airlines, and UPS. The following presents the comments received on the NPRM and the FAA's response to each comment.

ABX Air requested clarification as to whether repairs performed using approval via Form 8110-3 are exempt from needing an AMOC for this AD, similar to repairs made using approval via Form 8100-9 repairs. The commenter provided no justification for the request.

Repairs performed using Form 8110-3 are not exempt from requiring an AMOC for this AD. As specified in paragraph (l)(3) of this AD, only those repairs, modifications, or alterations required by this AD are exempt from an FAA approved-AMOC if those AMOCs are approved by The Boeing Company Organization Designation Authorization (ODA) that has been authorized by the Manager, AIR-520, Continued Operational Safety Branch, FAA, to make those findings. All other repairs, including those approved on Form 8110-3, will require an AMOC approved in accordance with paragraph (l) of this AD. This is necessary to ensure the repairs maintain an adequate level of safety.

All Nippon Airways requested that the proposed rule be modified to include B767-300BCF SRM Repair 1 as an acceptable method of compliance. It was not listed as a method of compliance whereas 767-200, -300, -300F, and -400 SRMs were in Tables 1 and 2(a). The commenter requested this change because All Nippon Airways owns 767-300BCF aircraft.

The FAA agrees with this change because the repairs and repeat instructions are the same for B767-300BCF as the B767-300 SRM. The FAA has revised paragraph (h) of this AD to include exceptions for repairs performed in accordance with B767-300BCF SRM 53-10-01 Repair 1.

Boeing requested that the AD include repetitive inspections for Model 767-2C if no crack is found. This change is requested to maintain the safety of the fleet since paragraph (i) of this AD should include all follow-on actions for the condition of no crack found.

The FAA agrees with adding the repetitive inspections to account for all follow-on actions for no crack found to maintain the safety of the fleet. Paragraph (i) of this AD is revised to include the repetitive inspections.

Boeing also requested that paragraph (j) of this AD be changed to reference the Airworthiness Limitations (AWL) document associated with the Compliance Time Definitions for Model 767-2C airplanes. The commenter is concerned with the redefining compliance times already defined within the AWL, which could create a conflict with the rule that would require a rule revision if the definitions in the AWL were to be redefined.

The FAA disagrees. The FAA's intent is for the compliance time terms used in paragraph (j) of this AD to be the same terms already defined in the Model 767-2C Airworthiness Limitations document. Including the compliance time definitions for Model 767-2C in paragraph (j) of this AD ensures that those definitions are followed, notwithstanding any future changes to the definitions in the AWL. If the compliance time definitions in the AWL are changed in the future, the FAA will consider revising this Airworthiness Directive at that time. In any event, an operator may request approval to use later revised compliance time definitions as an alternative method of compliance (under the provisions of paragraph (l) of this AD).

United Airlines requested the AD be amended to state that repetitive inspections associated with Boeing Alert Requirements Bulletin 767-53A0301 RB, Revision 2, dated May 24, 2023 conditions 3, 4, 7, and 8 (Ref/B) are not required in areas covered by 53-10-01 Repair 1 of the applicable Model 767 SRM (Ref/C/SRM) if done after the initial inspections required by Ref/B/RB. This change is requested because the commenter believes that the installation of a Ref/C/SRM repair after the initial Ref/B/RB inspection should provide at least an equivalent level of safety with the unsafe condition this AD is addressing. The FAA disagrees with revising the AD to state that a Ref/C/SRM repair terminates the need for repetitive inspections associated with RB conditions 3, 4, 7, and 8. In the RB Section 5 Accomplishment Instruction Tables 1 and 2, there is note (c) which states that accomplishment of 53-10-01 Repair 1 of the applicable Model 767 SRM is terminating action for the inspections at this location only. The FAA has determined that note (c) sufficiently outlines that performing repair 1 is the terminating action for the inspections at that location and no further clarification is necessary.

UPS requested amending paragraph (g) of this AD to state “For Model 767-200, -300, -300F, or -400ER series airplanes, as identified in Section (c) Applicability of the AD” to avoid confusion on where applicability is established in the AD.

UPS also requested revising paragraph (j) of this AD to state “Compliance Time Definitions for Model 767-2C” instead of “Compliance Time Definitions” to avoid confusion.

The FAA disagrees with changing paragraph (g) of this AD language because paragraph (c) of this AD specifies the applicability of the AD and therefore the airplane models affected by paragraph (g) of this AD. For clarification, airplanes not identified in paragraph (c) of this AD are not affected by any paragraph of this AD. The FAA agrees with revising paragraph (j) of this AD to state “Compliance Time Definitions for Model 767-2C” for clarity.

The FAA reviewed the relevant data, considered any comments received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for minor editorial changes, and any other changes described previously, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

The FAA reviewed Boeing Alert Requirements Bulletin 767-3A0301 RB, Revision 2, dated May 24, 2023. This service information specifies procedures for repetitive inspections (external detailed, internal detailed, and open hole high frequency eddy current) for cracking at the forward entry door and forward service door cutout aft lower corner fuselage skin and bear strap area. This service information also specifies procedures for on-condition actions, including crack repair.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

The FAA estimates that this AD affects 682 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA has received no definitive data on which to base the cost estimates for the on-condition actions ( i.e., possible crack repair) specified in this AD.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus SAS Model A320-214, A320-216, A320-251N, A320-271N, and A321-253NX airplanes. The NPRM published in the Federal Register on October 5, 2023 (88 FR 69110). The NPRM was prompted by AD 2023-0153, dated July 26, 2023 (EASA AD 2023-0153) (also referred to as the MCAI), issued by EASA, which is the Technical Agent for the Member States of the European Union. The MCAI states a quality review of the forward cargo door frame-to-fuselage skin panel assembly identified several drillings as deviating from manufacturing requirements, creating oversized fastener holes, which could lead to cracking. This condition, if not addressed, could lead to reduced structural integrity of the fuselage.

In the NPRM, the FAA proposed to require repetitive special detailed inspections of the affected area for discrepancies and, depending on findings, accomplishment of applicable corrective actions, as specified in EASA AD 2023-0153. The FAA is issuing this AD to address the unsafe condition on these products.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-1897.

The FAA received comments from two commenters. Air Line Pilots Association, International (ALPA) and an individual who both supported the NPRM without change.

Since the NPRM was published, EASA AD 2023-0153 was superseded by EASA AD 2023-0179, dated October 11, 2023 (EASA AD 2023-0179). Since EASA AD 2023-0153 was issued, it has been determined that, depending on inspection findings, no repetitive inspection may be required. EASA AD 2023-0179 also clarified that the initial inspection is a geometrical check of the diameter of certain fastener holes for deviations. The FAA has updated this final rule accordingly by replacing EASA AD 2023-0153 with EASA AD 2023-0179 in all affected paragraphs and added a “Credit for Previous Actions” paragraph to retain the requirements of EASA AD 2023-0153, however the concession identified in EASA AD 2023-0153 was removed in EASA AD 2023-0179.

This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data, considered the comments received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on this product. Except for minor editorial changes, and any other changes described previously, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

EASA AD 2023-0179 specifies procedures for a geometrical check of the diameter of certain fastener holes for deviations, and if any deviation is found, repetitive special detailed inspections of the affected area for discrepancies and, depending on findings, accomplishment of applicable corrective action. The special detailed inspection consists of a rototest inspection for cracking of the forward cargo door frame to fuselage skin panel, and if no cracking is found, checking the fastener hole diameters. Corrective actions include installing oversized fasteners if the fastener hole diameter is less than or equal to the specified nominal diameter, contacting the manufacturer for repair instructions if the fastener hole diameter is greater than the specified nominal diameter, and repairing any cracking by contacting the manufacturer for repair instructions. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the section.

The FAA estimates that this AD affects 8 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA has received no definitive data on which to base the cost estimates for the on-condition repairs specified in this AD.

The FAA has included all known costs in its cost estimate. According to the manufacturer, however, some or all of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected operators.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

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

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

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

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

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

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

Title VIII of the Civil Rights Act of 1968, as amended (Fair Housing Act or Act), prohibits discrimination in the sale, rental, or financing of dwellings and in other housing-related activities because of race, color, religion, sex (including sexual orientation and gender identity), disability, familial status, or national origin. 1 Section 817 of the Fair Housing Act provides that the Secretary may reimburse State and local fair housing enforcement agencies that assist the Secretary in enforcing the Act. 2

Although Section 817 was part of the original 1968 Act, it was not until 1980, through an annual appropriations act (Pub. L. 96-103), that Congress authorized funding for it, establishing the Fair Housing Assistance Program (FHAP). In requesting funding for the FHAP, the Carter administration cited limitations that localities had in processing fair housing complaints. 3

While the FHAP funds State and local governmental agencies to assist in enforcement of the Fair Housing Act, the Fair Housing Initiative Program (FHIP) was established in 1987 to fund private non-profits to do the same. Section 561 of the Housing and Community Development Act of 1987 (Section 561) established the FHIP as a temporary program, which Congress made permanent in 1992 through the Housing and Community Development Act of 1992. 4 In combination, the FHAP and FHIP strengthen HUD's enforcement of the Fair Housing Act and further fair housing.

Among other things, the FHAP and FHIP fund testing activities designed to enhance enforcement of the Fair Housing Act. Testing refers to the use of an individual or individuals who, without a bona fide intent to rent or purchase a house, apartment, or other dwelling, pose as a prospective renter or purchaser for the purpose of gathering information that may indicate whether a housing provider is complying with fair housing laws. Both FHIP and FHAP funded entities can use testing as a tool to investigate potential violations of the Fair Housing Act.

Section 561 specifically required HUD, during the demonstration period for the FHIP, to “establish guidelines for testing activities funded under the private enforcement initiative of the fair housing initiatives program” and noted that the purpose of the guidelines was “to ensure that investigations in support of fair housing enforcement efforts [. . .] shall develop credible and objective evidence of discriminatory housing practices.”  5 The Housing and Community Development Act of 1992 eliminated testing guidelines as a permanent requirement for the FHIP. 6

HUD regulations currently forbid FHIP and FHAP funded entities from using federal funds for fair housing testing that involves testers with prior felony convictions or convictions of crimes involving fraud or perjury. 7

For FHIP funded entities, this restriction dates back to the 1988 proposed regulations for the demonstration period that, among many other requirements, prohibited testers under the FHIP from having “prior felony convictions or convictions of crimes involving fraud or perjury.”  8 HUD did not explicitly explain why it proposed this specific restriction, nor did HUD receive comments related to this specific restriction. The regulations for the demonstration period were finalized in 1989 at 24 CFR part 125, and contained a section titled “Guidelines for private enforcement testing” (previously codified at § 125.405). The guidelines contained numerous prescriptive requirements about how eligible testing was to be designed and conducted ( e.g., allowing testing only in response to a “bona fide allegation”), including the requirement for a “formal recruitment process designed to obtain a pool of credible and objective persons to serve as testers,” followed by a restriction on testers having felony convictions or convictions of crimes involving fraud or perjury. 9

In 1994, HUD proposed eliminating the testing guidelines, noting that Congress specifically limited the testing guidelines requirement to the demonstration period and did not include this requirement in its permanent authorization of the FHIP. However, HUD proposed keeping the restriction on hiring testers with “prior felony convictions or convictions of crimes involving fraud or perjury” and keeping a requirement that testers receive training or be experienced in testing procedures and techniques. 10 HUD did not provide an explanation for why it chose to retain the restriction regarding convictions in the proposed rule, nor in the 1995 final rule. 11 The language—“The following requirements apply to testing activities funded under the FHIP: Testers must not have prior felony convictions or convictions of crimes involving fraud or perjury”—has not changed since 1995. 12

HUD did not address the criminal backgrounds of FHAP testers in its regulations until 2005. 13 While HUD established the eligibility criteria for participants in the FHAP in a 1980 interim rule and issued subsequent rules for the FHAP in 1982, 1988, and 1989, none of these addressed fair housing testing in any way. 14 The proposed rule in 2005 proposed a tester conviction restriction identical to that contained in the FHIP regulations. As with the FHIP rulemaking, there were no public comments on this restriction, and it was codified in 2007 in a final rule. 15

On October 31, 2023, HUD issued a Notice of Proposed Rulemaking, which proposed to amend its regulations by eliminating the tester restrictions that restrict FHIP and FHAP funded entities from using fair housing testers with prior felony convictions or convictions of crimes involving fraud or perjury (the proposed rule). 16 The proposed rule was a response to an April 12, 2022 directive from Secretary Marcia Fudge to HUD to “review our programs and put forth changes that ensure that our funding recipients are as inclusive as possible of individuals with criminal histories.”  17

In the proposed rule, HUD explained that it presumably first enacted the restrictions on testers' criminal convictions and then continued them in subsequent rulemakings because of the idea that certain criminal convictions would undermine a tester's credibility in testifying in court to what the tester witnessed under Rule 609 of the Federal Rules of Evidence (FRE), which provides that certain criminal convictions may be admitted to attack witness's “character for truthfulness.”  18

However, HUD explained that it viewed a categorical bar on anyone with a felony conviction, or conviction involving fraud or perjury to be overbroad, outdated, and unnecessary. First, such a broad and categorical bar includes a broader range of convictions than does FRE 609. Second, even for those convictions covered by FRE 609, HUD saw no reason to categorically bar those who conduct testing using FHIP or FHAP funds from employing testers with such convictions. Those entities may reasonably conclude that the prospect of admissibility under FRE 609 in litigation is of little consequence, especially because audio and video recording is often used in testing, which means that the recordings—more than the testers' testimony—are often the most important evidence. HUD pointed out that FRE 609 itself is not always applied even where a conviction comes under its potential application. Further, other requirements in these regulations will continue to apply to testers to help ensure that testers are objective, credible, and well qualified, regardless of their criminal backgrounds. For example, testers still must be trained in testing procedures and techniques. 19 Testers cannot have an economic interest in the outcome of the test;  20 be a relative or acquaintance of any party in the case;  21 have had a recent employment history or other affiliation with the person or organization to be tested;  22 or be a competitor (or licensed competitor) of the person or organization to be tested. 23

HUD also noted that it had been contacted by fair housing organizations urging reform of conviction restrictions because they prevent fair housing centers from testing for certain types of criminal background-based discrimination by preventing them from employing testers with felonies to test the entire application process. HUD recognized that many FHIP and FHAP funded entities now have an affirmative need to hire testers with criminal histories, who in cases that are of great priority to HUD may actually be better positioned to help those entities uncover discrimination. HUD explained that when the restrictions on testers' criminal convictions were first promulgated as a demonstration regulation in 1989, landlords were unlikely to conduct criminal background checks on prospective applicants. 24 Since then, landlords have increasingly implemented policies and practices to screen applicants based on their criminal convictions. 25

In 2016, HUD issued a memo explaining how these admissions policies and practices may be discriminatory under the Fair Housing Act. 26 One way landlords may discriminate is by using a criminal records policy as a cover (or pretext) for intentional discrimination because of a protected class. For example, a landlord may tell Black applicants that they are being rejected because of their criminal record but accept white applicants with the same or similar record. The real reason for the rejection is the person's race, even though the landlord is saying the reason is the person's criminal record. Another example of how a landlord may violate the Fair Housing Act is if a landlord has a criminal records policy that disproportionately excludes people of a certain protected class, and that policy is not necessary to achieve a substantial, legitimate, nondiscriminatory interest, or if there is a less discriminatory policy that can achieve that interest. 27 Testers with actual criminal records ranging from misdemeanor to felony convictions are in certain circumstances the best suited to obtain evidence of what modern-day criminal record screening practices are and whether these policies are being applied in a discriminatory way because of a protected characteristic. HUD explained how testers without bona fide criminal records are limited to investigating discrimination that occurs pre-application. Only testers with real criminal records will be able to submit an application to obtain evidence of what the policy is in practice at the admission stage and whether the policy is being applied (after the application is submitted) in a discriminatory manner. 28

Finally, HUD pointed out that HUD's current regulation disproportionately excludes people of color from opportunities to work for FHIP and FHAP funded entities, even as it serves questionable value in ensuring credible evidence in view of the other safeguards that apply to fair housing testing.

After reviewing and considering public comments on this Rule, HUD finalizes its proposal to remove the conviction restrictions for testers in the FHIP and FHAP regulations.

HUD notes that in addition to the reasons expressed in the proposed rule, summarized above, and echoed by many public comments summarized below, HUD received several public comments from local fair housing organizations regarding the difficulties they have had due to the conviction restrictions recruiting testers of color to conduct race and national origin-based testing. Further, commenters highlighted the catch-22 organizations are put in regarding compliance with these HUD restrictions and compliance with anti-discrimination employment restrictions and/or civil-rights based values. Finally, several commenters noted that removing this restriction is necessary for HUD to be consistent in terms of its own commitment to equity and civil rights. HUD believes these are important additional reasons to finalize the proposed rule and to remove the restrictions on testers with felony convictions and convictions involving fraud and perjury.

HUD received 192 comments from FHIP and FHAP funded entities, advocacy and re-entry organizations, appraisers, testers, persons with criminal convictions, and other individuals. This public comments section includes a summary of the public comments that HUD received in response to the proposed rule.

Several commenters expressed their general support for HUD's proposal to eliminate the agency's restrictions on the use of fair housing testers with prior felony convictions or certain other convictions by FHIP and FHAP funded entities. Commenters writing in support of the rule emphasized the value of or necessity for testing, generally. One commenter said that “testers play a vital role and necessity in assisting to eradicate housing discrimination in America.”

Some commenters noted that HUD's current restrictions are “antiquated” and “outdated.” One of these commenters also described the current restrictions as “overbroad” and “unnecessary.” Another questioned their policy justification. Two commenters said the current restrictions never should have been on the books in the first place.

Some commenters said the current restrictions amount to a discriminatory “blanket ban” on persons with criminal histories.

Other commenters said the current restrictions constitute employment discrimination. Some commenters noted that the restrictions are inconsistent with Equal Employment Opportunity Commission guidance on the use of criminal records in employment decisions. One commenter said complying with the current regulation causes them to face potential liability for employment discrimination. One commenter noted that the proposed changes would also allow FHIP and FHAP funded entities to abide by state and local laws which prohibit employment discrimination based on criminal legal system interaction.

One commenter said the current regulation is inconsistently applied and frequently misunderstood with some grant technical monitors enforcing the regulation while others do not, and several FHIP staff across the country have misunderstood the regulation to only bar testers with felonies related to fraud or perjury.

Commenters said the proposed rule would make it easier for housing organizations to uncover housing discrimination, and therefore further the current Administration's goal of advancing core values of equity, civil rights, racial justice, and equal opportunity.

Several commenters said that there is a contradiction between HUD forbidding housing providers from discriminating against tenants on the one hand, but on the other hand engaging in discrimination by forcing FHIP and FHAP funded entities to discriminate in employment. One commenter said HUD's “blanket ban” on testers with criminal convictions negates HUD's stated commitment to breaking down barriers for criminal justice system involved persons. One commenter said the existing regulation tells justice-impacted communities that fair housing organizations are “hypocrites” for indulging in the very discrimination those organizations work to combat. One commenter said it is hypocritical to test for discrimination on the basis of criminal record while barring those who have served their sentences from testing. Another commenter said revoking the current restrictions would meaningfully aid in HUD's commitment to make reentry into the workforce more accessible for persons with a prior felony conviction. This commenter cited prior HUD statements that align with the proposed rule, which note that criminal history is not a good predictor of housing success, and that denying housing to prospective tenants could violate the Fair Housing Act. Some commenters said eliminating the current restrictions would reinforce rather than contradict HUD's own guidance. These commenters said the proposed rule was essential to ensure a consistent anti-discrimination message from HUD and its grantees.

Several commenters supported the proposed rule, noting that it aligns with their organizational missions. Commenters supported the proposed rule because it would help to make HUD programs more fair and inclusive.

Commenters indicated specific populations that this rule would help, including those who are being discriminated against by housing authorities and employers, domestic violence survivors, people with disabilities who have felony convictions, and those needing a place to live. One commenter said the proposed rule takes a step to deter the criminal justice system's oppression and discrimination against people of color.

Several commenters said employment-based criminal history restrictions discriminate against Black people and minorities. Other commenters also pointed out that the current regulation disproportionately affects certain groups which have been unfairly impacted by mass incarceration and biases in the criminal justice system, including Black and Latino individuals and other racial minorities, and these people are the exact demographic of people who are needed to be fair housing testers. Some of these commenters said that excluding individuals with convictions from serving as fair housing testers undermines efforts to address the inequalities in housing by perpetuating inequalities in employment- a double negative impact. One commenter noted that the proposed changes are a step towards rectifying centuries of policies and practices that have created worse housing and employment outcomes for underserved groups.

HUD Response: HUD thanks these commenters for their comments and notes that this final rule mirrors the proposed rule.

Commenters opposing the proposed rule cited various potential disadvantages as outweighing values such as inclusion, equity, or anti-racism. One commenter said those values are not worth making testing worse, and potentially dangerous.

Some commenters opposed the proposed rule, expressing disapproval of fair housing testing in appraisal transactions. One commenter said that national rules outlined in USPAP (the Uniform Standards of Professional Appraisal Practice) already forbid appraisers from utilizing any kind of bias when preparing a report or opinion of value. Another commenter said that “[i]f a property is accurately evaluated, it is a non-biased issue. The property speaks for itself” and noted that those controlling testing are not knowledgeable about the appraisal process.

One commenter expressed disapproval of the proposed rule , stating that HUD Secretary Marcia Fudge has “commented publicly and on the record with her own racial bias without substantiating evidence or proof.” Another commenter said the proposed rule was an “egregious idea,” and that HUD should instead be promoting safe and affordable housing.

One commenter noted that “there are plenty of people who do not have criminal records that are from diverse populations and socio-economic backgrounds that can assist with this job.”

Another commenter said the proposed rule hides information from the screening decision process, and that if an applicant has prior felony convictions or convictions of crimes involving fraud or perjury, then it should be known.

HUD Response: HUD thanks the commenters for their comments.

HUD respectfully disagrees that there are enough candidates of diverse backgrounds to fill the job of testers. HUD notes that it received several comments from organizations that conduct fair housing testing that say that they find it either difficult or impossible to recruit a diverse set of fair housing testers under the current regulation. Based on those comments, this problem seems to be particularly heightened in rural communities. Commenters also note that persons with criminal convictions are needed to effectively test for certain kinds of discrimination ( i.e., using criminal convictions as a pretext for discrimination based on race), because only these people can complete the application process to effectively uncover this kind of discrimination.

HUD notes that this rulemaking does not hide any information from the tester screening process. Instead, the final rule permits FHIP and FHAP funded entities who hire testers to screen for felony convictions or crimes involving fraud or perjury and allows them to have discretion to reject such applicants based on such convictions.

HUD disagrees with the commenter that this rule could make testing potentially dangerous. HUD also believes this rule supports access to safe and affordable housing free from discrimination.

HUD notes that this rule is not related to the necessity of testing generally or in any particular industry such as the appraisal industry. It also does not change who controls testing or their knowledge of the appraisal process. Under this rule, testing remains an available option for FHIP and FHAP funded entities to utilize to enforce the Fair Housing Act in all covered housing transactions. This rule only changes who can qualify as a tester funded through FHIP and FHAP funds. HUD further notes that the fact that appraisers are legally prohibited from discriminating does not mean that they actually refrain from discriminating under the Fair Housing Act. Therefore, testing is still a potentially relevant tool.

Two commenters said the proposed rule may make the testing process unsafe. One commenter cited general recidivism statistics, while others suggested that those who have broken the law or committed a felony in the past are untrustworthy or more likely to break the law again. One of these commenters cited a 75% recidivism rate over five years from the Bureau of Justice Statistics to oppose the rule's inclusion specifically of crimes of fraud and perjury.

One commenter noted that a person who has knowingly broken a major law in the past may then be put in the position as a tester where they can lie for financial gain. Another commenter suggested that testers with criminal backgrounds may take a bribe from a housing provider so that the provider would “pass” the fair housing test. Another suggested that those who have committed felonies are more likely to commit criminal acts like blackmail against landlords.

One commenter noted that although past felony convictions in general may not have any bearing on the integrity of the FHIP and FHAP programs, proven past behavior of fraud and perjury should. The same commenter noted that allowing testers with fraud or perjury convictions would impact the integrity of the program, and that such a rule would be akin to, or lead to a slippery slope of, allowing contractors and others on the debarment list to participate in future endeavors.

Some commenters stated that people with criminal histories are just as capable as those without criminal histories. One of these commenters said that justice involved individuals can be trustworthy, effective communicators, reliable, and brilliant. Several commenters dismissed concerns about the lack of credibility that may be attributed to a person with certain criminal convictions, noting that because most fair housing tests are now recorded, there is less concern that someone—including someone with a criminal conviction—is fabricating a narrative. One commenter said there are more reliable indicators of an individual tester's credibility than a prior criminal conviction. Another commenter said that a criminal conviction has no bearing on a person's credibility or potential as a tester. Commenters said the other restrictions on testers, including barring them from having an economic interest in tests and other anti-bias restrictions, are sufficient to demonstrate tester credibility. One commenter pointed out that while some citizens may be guilty of fraud, it is not always a direct result of their character; instead, barriers related to poverty cause survival behaviors that can lead to conviction. Another commenter similarly stated that there are countless reasons why someone may be incarcerated, many of which have no bearing on an individual's character. One person commented that not all those convicted of felonies are “true criminals,” noting they know someone convicted of a felony. Other commenters argued that tester applicants deserve an individualized assessment, even if they have a criminal background. One commenter said the vast majority of fair housing testers never testify at trial at all, nor is eliciting trial testimony a primary purpose of testing. The commenter stated that even when cases do go to litigation, only a very small percentage go to trial and a smaller percentage still involve the testimony of a tester.

Commenters pointed out that in some ways, people with criminal convictions bring unique advantages to the role of fair housing tester or otherwise would make more effective housing equity enforcement. Commenters said it is important that people with conviction histories have the chance to work as federally funded fair housing testers because they are closest to the issue and have lived experiences that can benefit investigations. One commenter noted that a job as a tester is perfect for an individual with a felony, explaining that they would have true interest and passion in this role.

One commenter said the proposed rule would ensure that testing efforts are rooted in the community which promotes transparency and trust and encourage the participation of individuals who may have a personal stake in addressing housing discrimination, thereby strengthening the overall impact of FHIP and FHAP funded initiatives. Another commenter said allowing local FHIP and FHAP funded entities the discretion to determine tester qualifications can also lead to increased community engagement by involving community members, advocates, and local experts in the testing process that will foster a sense of ownership and collaboration.

Many commenters said the proposed rule would ensure that FHIP and FHAP funded entities are able to fully investigate criminal background screening policies that are potentially discriminatory under federal civil rights laws by using testers with actual criminal backgrounds. Commenters explained that testers with backgrounds are necessary to complete effective testing throughout a housing transaction, including during the application phase. Commenters said this is especially important because as more sophisticated landlords have learned about the ways that blanket bans against people with convictions may violate the Fair Housing Act, they have become less likely to openly admit discriminatory policies pre-application. One commenter said it needs to use testers with criminal histories to successfully litigate these types of fair housing cases “given [their] hostile court system.” Several commenters said removing these restrictions would make it possible to fully investigate and enforce local and state laws that limit tenant screening based on criminal histories of applicants.

Several commenters said the current regulation needlessly limits the pool of potential fair housing testers who are members of racial minorities, when the very thing that is needed to adequately test for fair housing is a wide variety of people who are members of racial minorities. Other commenters said broadening the scope of persons who can serve as testers—as the proposed rule would do— creates a more diverse and more effective testing pool. One commenter explained that their organization gets many complaints about housing discrimination, and one of the most difficult parts of trying to get justice for their clients is finding testers to do the work. This commenter wrote that allowing formerly incarcerated people to work as fair housing testers might go a long way to increasing the number of available testers in their area. Another commenter stated that due to racial disparities in the local criminal justice system, they have had challenges in recruiting racially diverse testers, especially Native American testers. The commenter stated that this impedes their ability to assist their Native American clients who face housing discrimination. The commenter explained the current restrictions also restrict their ability to use Black testers, and explained how the current regulation is especially harmful to anti-discrimination efforts in rural states by needlessly limiting the pool of testers. Another organization commented that the current restrictions on working with testers with criminal backgrounds has presented obstacles in recruiting effective testers that have prevented their agency from hiring individuals with criminal convictions who would be excellent testers. One commenter said removing barriers to entering the tester workforce can help meet the urgency of the ongoing and evolving need to enforce fair housing.

Commenters said FHIP and FHAP funded entities should decide whether to hire a tester with a conviction record, as they are most equipped to know and be able to weigh the risk that a tester's past involvement in the criminal legal system poses in relation to the methods used in testing. One commenter noted that the proposed rule would not require FHIP and FHAP funded entities to hire testers with criminal convictions, it would just give them that discretion. Another commenter stated that FHIP and FHAP funded entities should have sufficient latitude to identify and select testers that meet minimum training standards and support their work without undue interference, restrictions, and burdensome requirements.

HUD Response: HUD appreciates the comments related to the impacts of the rule on the quality of fair housing tests and the integrity of the FHIP and FHAP. HUD has considered how this rule may impact fair housing testing negatively and how this rule may impact fair housing testing positively and believes that the positive impacts will outweigh any potential negative impacts.

HUD believes that FHIP and FHAP funded entities, who are responsible for the conduct of their testers, are well positioned to decide whether there is a risk in employing an applicant with a particular criminal conviction as a tester. This rule leaves them free to make the same kind of discretionary determination, based on the totality of the circumstances (including how long ago the conviction was, the circumstances surrounding the conviction, and life someone has lived since) that employers, landlords, and others are free to—and often—make. Far from posing a risk to public safety, providing opportunities to those with criminal convictions to be employed as fair housing testers opens up meaningful employment opportunities, and may actually reduce the risk of recidivism among ex-offenders, increasing public safety overall. 29

HUD disagrees with commenters that individuals with felony and convictions involving fraud or perjury should be barred to serve as testers because they are more likely to accept bribes, blackmail landlords, or lie for financial gain. HUD believes that the local FHIP or FHAP funded entity—rather than HUD—is in the best position to know the extent to which applicants with certain convictions may jeopardize testing and the extent to which local judges and juries may find particular convictions relevant to witness credibility. Those entities can use this local expertise, along with weighing the particulars of the conviction, such as the time that has passed since the conviction, the nature of the conviction, and evidence of post-conviction reform, in making their own local hiring decisions.

Secondly, as HUD explained in the preamble to the proposed rule, under modern day testing methodologies allowed in many states, a tester's main role on the witness stand is testifying that the recording being presented is an authentic recording of the event at issue in the case. Thus, in many cases, the tester merely needs to be credible enough for the judge or jury believe that testimony.

In addition, HUD believes other requirements that are not impacted by this final rule help ensure that testers are objective, credible, and well qualified, regardless of their criminal convictions. For example, testers must be trained in testing procedures and techniques and they are prohibited from having an economic interest in the outcome of the test, being a relative or acquaintance of any party in the case, having had a recent employment history or other affiliation with the person or organization to be tested, or being a competitor (or licensed competitor) of the person or organization to be tested. 24 CFR 125.107(c) and 115.311(d).

HUD declines to retain restrictions on individuals with convictions involving fraud or perjury in this final rule. While this final rule allows FHIP and FHAP funded entities to use HUD funds to hire testers with convictions involving fraud or perjury (in addition to those with felony convictions generally), HUD expects many FHIP and FHAP funded entities will still screen for these convictions and consider whether to hire an applicant on a case-by-case basis, in line with their own needs, investigations, and litigation efforts. A FHIP or FHAP funded entity may, for example, view an applicant with a 40-year-old conviction for writing a bad check much differently than someone more recently convicted of embezzling funds from a non-profit or governmental organization. Whether for fraud or perjury crimes, or for felony convictions more generally, HUD finds that an automatic, blanket ban is unable to account for the numerous different circumstances which may make a particular conviction an inappropriate disqualifier to a testing applicant's candidacy for employment with a FHIP or FHAP funded agency. While HUD notes that recidivism statistics can have value in some contexts, the inferences that can be drawn from these statistics are limited, and HUD believes that these statistics are inappropriate to use here to justify categorical bans against people applying to be testers. 30 HUD reiterates the messages in “Tenant Screening With Criminal Background Checks: Predictions And Perceptions Are Not Causality”, published on May 17, 2022 by HUD's Office of Policy, Development, and Research, which notes that “predicting future criminal involvement is a complicated business. Even using the best assessment and screening tools that undergo regular validations and enhancements, predictions are often wrong. . . . prediction is not causality, [and] we have to accept that predictions look backward to estimate an outcome that has not yet occurred and may never occur.” Further, basing risk assessments on criminal convictions means using “measures that are inherently biased because of discriminatory criminal justice practices.” Id. Thus, HUD believes that examining each applicant on a case on a case-by-case basis, with full contextual information, is a fairer and more effective means to determine someone's qualification for a job, compared to automatically assuming someone will not be a good candidate based on a conviction for a specific category of crime (here, either a felony or a crime involving fraud or perjury).

HUD believes that integrity of the FHIP and FHAP is jeopardized by: (1) imposing rigid and automatic bans based on convictions that may have no bearing on a person's ability to be a quality tester, (2) forbidding FHIP and FHAP funded entities from taking into account all the relevant information about candidates for testers (including the age of any conviction, evidence of rehabilitation, circumstances surrounding any conviction), and (3) forcing FHIP and FHAP funded entities to make decisions based on convictions that may have been the result of the same kind of discrimination that these entities are meant to combat. HUD believes that these issues pose more of a threat to the integrity of the FHIP and FHAP than allowing FHIP and FHAP funded entities the discretion to allow people with convictions for fraud and perjury become testers. HUD further notes that providing discretion to FHIP and FHAP funded entities to hire testers who have past convictions involving fraud or perjury is consistent with current debarment regulations, which allow federal agencies to debar individuals based on certain criminal convictions (see 2 CFR 180.800), and also allow the government to take into account a long list of mitigating circumstances to decide not to debar an individual based on such convictions. See 2 CFR 180.860.

HUD agrees with commenters who said testers with actual criminal convictions ranging from misdemeanor to felony convictions are, in certain circumstances, the best suited to obtain evidence of what modern-day criminal record screening practices are and whether these policies are being applied in a discriminatory way. HUD also agrees that engaging individuals with experiences that are relevant to a fair housing investigation is beneficial to both fair housing enforcement and HUD's mission to advance equity more generally. HUD agrees with commenters that broadening the scope of persons who can serve as testers allows FHIP and FHAP funded entities to build and maintain a more diverse testing pool that is best poised to respond to all types of fair housing allegations. The final rule is in line with these goals.

HUD agrees that FHIP and FHAP funded entities are in the best position to make decisions about how to screen their own testers because those entities know the specific characteristics and challenges of their local housing markets and can select the most appropriate testers for their investigations. As stated in the proposed rule, HUD sees no reason to categorically bar those who conduct testing using FHIP or FHAP funds from employing testers with certain criminal convictions. By rescinding the Federal prohibitions on tester criminal convictions, this final rule provides necessary discretion to FHIP and FHAP funded entities.

Commenters noted the struggles of individuals who have made mistakes, and noted that despite being rehabilitated, not a threat, and active members of their community, people with criminal convictions are continually unfairly excluded from desperately needed opportunities, including career opportunities some of which are blocked by the current regulation's stipulations. Commenters said the collateral consequences of felony convictions can lead to mental health issues and recidivism.

Many commenters said that the current regulations unfairly punish those who have already been punished through the criminal justice system and should not be punished further. Commenters said if someone has “served their time” and “paid their debt to society,” they should be able to put the past behind them and have a second chance, including the chance to assist in positive change and serve in the role of a fair housing tester.

Commenters said the proposed rule will improve the lives of people with criminal convictions by expanding opportunities to develop marketable skills and jobs in order gain self-sufficiency, stability, and contribute positively to society. Commenters specifically talked about the value of those reentering society becoming more involved in their communities through serving in the role of a fair housing tester. Commenters stated that the proposed rule would reduce stigma against people with felony convictions, which commenters noted as an important goal.

One commenter stated that this rule is especially needed to support single fathers and men, especially Black men who are struggling to regain their identity without stability or sources of income because of criminal records.

HUD Response: HUD agrees with commenters that the final rule will expand important opportunities for individuals with criminal convictions because of the compensation these opportunities will provide for individuals who are hired through the FHIP and FHAP programs, the valuable experience these individuals will gain to help further career prospects, and because of the empowerment that comes from employment generally, and particularly employment focused on rooting out discrimination in one's community. HUD notes that opening access to fair housing enforcement should increase housing opportunities more generally by increasing detecting discriminatory policies and practices that impact those with criminal convictions.

HUD agrees with the commenters that by opening up employment opportunities for people with criminal convictions in our FHIP and FHAP programs, this final rule contributes to a stronger, healthier, safer society at large. 31

One commenter requested that guidance be issued to clarify to grant managers and FHIP staff that a blanket ban on testers with past convictions will no longer be enforced. Another commenter said HUD should ensure that FHIP and FHAP funded testing programs are actively advertising to people with prior criminal convictions, encouraging people from all backgrounds to apply, and evaluating their applications fairly. One commenter recommended that once the prohibition is removed, HUD should partner with organizations that serve those with felony convictions and convictions involving fraud or perjury to create and fund a training program and pipeline for those with records to become testers.

Several commenters wrote regarding their support for or their opposition to expanding housing opportunities for individuals with criminal convictions.

Other commenters wrote with specific concerns and requests relating to their individual housing situations.

HUD Response: HUD thanks commenters for their recommendations and will take them under advisement.

HUD also appreciates all comments relating to expanding housing opportunities for individuals with criminal histories. However, this final rule does not change any regulation regarding whom landlords —including HUD-assisted housing providers and public housing agencies—may accept as tenants. Instead, this final rule removes prohibitions on the use of HUD funds to hire testers with certain criminal convictions.

Finally, regarding comments outlining specific concerns and requests relating to individual housing situations, HUD thanks these commenters for their thoughts, however, HUD is unable to take any of the requested actions under this rulemaking.

Under E.O. 12866 (Regulatory Planning and Review), a determination must be made whether a regulatory action is significant and, therefore, subject to review by the Office of Management and Budget (OMB) in accordance with the requirements of the order. E.O. 13563 (Improving Regulations and Regulatory Review) directs Executive agencies to analyze regulations that are “outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.” E.O. 13563 also directs that, where relevant, feasible, and consistent with regulatory objectives, and to the extent permitted by law, agencies are to identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public. E.O. 14094 (Modernizing Regulatory Review) amends section 3(f) of E.O. 12866, among other things.

The final rule revises 24 CFR parts 115 and 125 to remove fair housing tester restrictions. The revised regulations would allow FHIP and FHAP funded entities the ability to use HUD funds to compensate testers with felony convictions and convictions for crimes involving fraud or perjury. This rule was not subject to OMB review. This rule is not a “significant regulatory action” as defined in section 3(f) of Executive Order 12866 and is not an economically significant regulatory action.

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. This final rule will remove tester restrictions from the FHIP and FHAP regulations which prohibit fair housing testers with prior convictions of a felony, fraud, or perjury. This will not create an undue burden on small entities, instead it will allow FHIP and FHAP funded entities the ability to use testers with felony convictions and convictions for crimes involving fraud or perjury. Identifying potential discriminatory screening policies will positively impact small entities and assist with maintaining compliance with the Fair Housing Act. Therefore, this final rule will not have a significant economic impact on a substantial number of small entities.

Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial direct compliance costs on state and local governments and is not required by statute, or the rule preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Executive order. This final rule does not have federalism implications and would not impose substantial direct compliance costs on state and local governments or preempt state law within the meaning of the Executive order.

This final rule is a policy document that sets out fair housing and nondiscrimination standards and provides for assistance in enforcing fair housing and nondiscrimination. Accordingly, under 24 CFR 50.19(c)(3), this rule is categorically excluded from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321).

Title II of the Unfunded Mandates Reform Act of 1995 establishes requirements for Federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments and the private sector. This rule will not impose any federal mandates on any state, local, or tribal governments or the private sector within the meaning of the Unfunded Mandates Reform Act of 1995.

For the reasons described in the preamble, HUD amends 24 CFR 115 and 125 as follows:

We did not publish a notice of proposed rulemaking for this rule. Under Title 5 of the United States Code (U.S.C.), section 553(b)(A), the Coast Guard finds that this final rule is exempt from notice and public comment rulemaking requirements, because these changes involve rules of agency organization, procedure, or practice. In addition, the Coast Guard finds that notice and comment procedures are unnecessary for this final rule under 5 U.S.C. 553(b)(B), as this rule consists of only technical and editorial corrections, and these changes will have no substantive effect on the public. Also, under 5 U.S.C. 553(d)(3), the Coast Guard finds that, for the same reasons, good cause also exists for making this final rule effective upon publication in the Federal Register .

This final rule, which becomes effective on April 3, 2024, makes technical and editorial corrections throughout titles 33 and 46 of the Code of Federal Regulations (CFR). These changes are necessary to update authority citations, correct errors, update contact information, and make other non-substantive amendments that improve the clarity of the CFR. This rule does not create or change any substantive requirements.

This final rule is issued under the authorities of 5 U.S.C. 552(a) and 553; 14 U.S.C. 102 and 503; Department of Homeland Security (DHS) Delegation No. 00170.1, Revision No. 01.3; and authorities listed at the end of this rule for each CFR part this rule amends.

The Coast Guard periodically issues technical, organizational, and conforming amendments to existing regulations in titles 33 and 46 of the CFR. These technical amendments provide the public with accurate and current regulatory information, but do not change the effect of any Coast Guard regulations on the public.

This final rule updates the authority citations in 33 CFR parts 1, 151, 155, 161, 164, and 175, and 46 CFR parts 3, 15, 70, 117, 118, 119, and 147. Specifically, this final rule implements the updates to DHS Delegation No. 00170.1, Revision No. 01.3 in 33 CFR parts 1, 151, 155, 161,164, and 175, and 46 CFR parts 3, 15, 70, 117, 118, 119, and 147.

The Office of the Federal Register's Document Drafting Handbook (DDH) provides guidance on how to follow the formatting and editorial requirements established in 44 U.S.C. chapter 15 (the Federal Register Act) and 1 CFR chapter I. See the Introduction to the DDH, which is at www.archives.gov/files/federal-register/write/handbook/ddh.pdf . At page 2-55, the DDH refers readers to the Government Publishing Office (GPO) Style Manual as a guide for punctuation, capitalization, spelling, compounding, and other style matters not addressed in the DDH.

In a note on page 2-29, the DDH states, “Even if you have only one note, appendix, table, or figure, you must still designate it as `Note 1', `Appendix A', etc.” To comply with this guidance, we have numbered any unnumbered tables and notes, which are otherwise being amended in this document. In an example on page 77, the GPO Style Manual provides that the word “table” should be capitalized when the word is part of the title of the table. The GPO Style Manual is at www.govinfo.gov/content/pkg/GPO-STYLEMANUAL-2016/pdf/GPO-STYLEMANUAL-2016.pdf . To comply with this guidance, we have capitalized the word “table” wherever it is used in these technical amendments as part of the title of the table.

In § 1.05-1(d), this final rule updates language to reflect the new rulemaking delegation memo for rulemakings from Coast Guard Headquarters issued by the Commandant on April 6, 2023. Specifically, these changes reflect current delegations in Commandant Memorandum 16704, which delegates rulemaking authority to the following headquarters individuals and offices: Assistant Commandant of Prevention Policy (CG-5P), the Assistant Commandant for Response Policy (CG-5R), the Assistant Commandant for Resources (CG-8), and the Judge Advocate General (CG-094). The revised language preserves and incorporates verbatim the limitation of this delegation to those regulations determined nonsignificant within the meaning of Executive Order 12866, which had been in what was subparagraph (d)(2). As noted above, the Memo only addresses delegations of rulemaking authorities to headquarters organizations, in this case, those covered in paragraph (d) of 33 CFR 1.05-1; it does not affect delegations to field offices, which are covered in paragraph (e) of § 1.05-1.

In § 5.26(b), this final rule replaces the outdated reference to the Coast Guard Institute with a reference to the Coast Guard Education and Training Quota Management Command. In 2017, the Coast Guard Institute was decommissioned and functionally replaced by the Coast Guard Education and Training Quota Management Command.

In § 104.400(b), this final rule removes an outdated address, as the Marine Safety Center no longer has a location in Arlington, Virginia.

In §§ 151.27 and 151.28, this final rule updates language to reflect the current directorate, office titles, and individuals fulfilling those responsibilities, and corrects mailing, email, and electronic submission addresses. This final rule replaces the outdated “CG-CVC-1” title with “CG-MER” and updates instructions for submitting plans and revisions electronically. It also removes paragraph (h) in both sections. The paragraphs being removed address the use of forms, which are no longer used.

In the note to what is currently labeled “Table 155.1050(k)”, and in §§ 155.1065(h), 155.1070(g), 155.5067(c), 155.5075(a), and 155.5075(b), this final rule removes outdated language and replaces it with the names of current directorates, office titles, and individuals fulfilling those responsibilities. The text “Table 155.1050(k)” has been changed to “Table 1 to § 155.1050(k),” and its note has been changed to “Note 1” in accordance with the DDH. In addition, in §§ 155.1065(h), 155.1070(g), and 155.5075(a) and (b), this final rule removes the text, “Incident Management and Preparedness Policy,” and replaces that text with “Emergency Management.” In addition, it corrects mailing, email, and electronic submission addresses.

In § 155.1065(a), this final rule substitutes “must” for the obsolete term “shall,” in accordance with direction in the Federal Plain Language Guidelines, March 2011, the use of which has been mandated by the Office of Management and Budget (OMB) Memo M-11-15 (Final Guidance on Implementing the Plain Writing Act of 2010). ( https://obamawhitehouse.archives.gov/sites/default/files/omb/memoranda/2011/m11-15.pdf .) In addition, in §§ 155.1065(a) and 155.5065(a), this final rule updates instructions for electronically submitting a vessel response plan to the Commandant. It updates the website link for submitting a vessel response plan, and it adds a website link for new user registration (to enable electronic submission). It also updates the postal mailing address to reflect the correct “Stop” number and zip code for the Office of Marine Environmental Response Policy (CG-MER).

In § 155.1065(b), this final rule removes the last sentence of the paragraph, and, in § 155.5065(b), this final rule removes the last two sentences of the paragraph. In § 155.5065(b), the penultimate sentence provides an incorrect website link for submitting a vessel response plan electronically. The substance of this sentence has been moved to paragraph (a), with the correct link substituted for the incorrect link currently provided in the sentence being removed from paragraph (b). The very last sentences of both §§ 155.1065(b) and 155.5065(b) refer to a document which is no longer used, and which is not available at the website linked. The document relates to submissions sent to the postal address for CG-MER. Vessel response plans so submitted need not use the form referred to in the sentence, which has been deleted.

In §§ 161.60(d)(2) and (3), this final rule replaces outdated references to redesignated paragraphs. These revisions align the references with the amendments made to § 161.60 in 67 FR 53742 (August 19, 2002), which redesignated paragraphs (b) through (d) as paragraphs (c) through (e), respectively, and added a new paragraph (b). References to the redesignated paragraphs were not updated in other paragraphs of this section at the time the paragraphs were redesignated.

This final rule revises “Note to paragraph (d)” in § 164.46 to “Note 1 to § 164.46(d)”, in accordance with the DDH. In the same note, this final rule corrects the address of the linked website (which leads to the Navigation Center home page) to take the reader directly to “FAQ #2” on the “AIS Frequently Asked Questions” page, (which is posted elsewhere on the Navigation Center website). FAQ #2 contains a link to the referenced “USCG AIS Encoding Guidance.”

In § 164.70, this final rule replaces the outdated acronym for the Army Corps of Engineers “ACOE” with its new acronym, “USACE.”

In § 165.840(a), this final rule updates the coordinates to the entrance of Egmont Channel to its correct location of 28°56′12.619″ N, 088°58′10.303″ W.

In § 165.1704(c), this final rule replaces the reference to § 161.60(c) with the corrected reference to § 161.60(d). As noted in the amendments to § 161.60, 67 FR 53742 redesignated paragraphs (b) through (d) in § 161.60 as paragraphs (c) through (e), respectively, while adding a new paragraph (b). However, references to the redesignated paragraphs were not updated in other sections, which this rule corrects.

This final rule removes paragraph (c) in §§ 174.17 and 174.19, as both paragraphs contained outdated and no longer applicable information on vessel numbering.

In § 175.380(a), this final rule replaces the reference to “table 2 to § 175.320(b)(1)” with a reference to “Table 4.” There is no “table 2 to § 175.320.” Paragraph (a) of § 175.380 involves fire extinguisher capacity, and “Table 4 to § 175.320(b)(1)”, which establishes the number and size of portable fire extinguishers required aboard a recreational vessel more than 65 feet in length, is the correct reference.

In § 3.03-1, this final rule replaces a reference to the definition of oceanographic research vessel in “46 U.S.C. 2101(18)” with “46 U.S.C. 2101.” Section 2101 contains a list of definitions in alphabetical order, and because new terms have been added to those already there, the numbering of the subsections in § 2101 has changed. The definition of “major conversion” is now found at 46 U.S.C. 2101(18) and the definition of “oceanographic research vessel” has moved to 46 U.S.C. 2101(24). We have decided not to specify the subsection in the replacement language, as subsection numbers are likely to continue to change as additional definitions are included in 46 U.S.C. 2101. In §§ 15.605(a) and (b), this final rule replaces outdated references in the statutory definition of “uninspected passenger vessel” with the correct reference. Congress added more definitions to 46 U.S.C. 2101 since 46 CFR 15.605 was published. And since definitions are listed there in alphabetical order, subsection numbers have changed.

As §§ 15.605(a) and (b) no longer reference the correct subparagraphs for the statutory definition for “uninspected passenger vessel,” this final rule replaces “46 U.S.C. 2101(42)(A)” with “46 U.S.C. 2101(53)(A)” in § 15.605(a), and with “46 U.S.C. 2101(53)(B)” in § 15.605(b). Here, we have retained the subparagraph numbers “(53)(A)” and “(53)(B)”, because the requirements differ depending on which subsection of § 2101 applies.

In §§ 70.05-1(a) and 70.05-3(a), this final rule updates language and corrects a table reference. Originally, § 70.05-3(a) referred to “column 4 of table 70.05-1(a),” which existed when the rule was originally published (on December 30, 1965, at 30 FR 16892), but no such table exists today. The correct reference today is to “column 3 of Table 2.01-7(a).” In § 70.05-1(a), this final rule adds a reference to that table as well.

In §§ 117.71(d), 118.115(b), and 119.115(c), this final rule removes implementation deadlines for certain life jackets that have passed and are no longer relevant. This rule also adjusts and removes language in § 117.71(d) to reflect the removal of these outdated implementation deadlines.

In § 147.50(d), which provides that “[l]iquefied or non-liquefied gas is prohibited for cooking, heating, and lighting on ferry vessels, but may be used on other inspected vessels if the system in which it is used meets the applicable requirements of subpart 58.16 or subpart 184.05 of this chapter. . .,” this final rule replaces “subpart 184.05” with “subpart B of part 184 of this chapter.” The reference to “subpart 184.05” was added to § 147.50 in 1989 (54 FR 6396, 6402, Feb. 10, 1989). In 1996, we issued a rule (61 FR 864, 933, Jan. 10, 1996) that completely revised our regulations affecting small passenger vessels, including those in 46 CFR part 184. Subpart 184.05 became subpart b of part 184.

We developed this final rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on these statutes or Executive orders.

Executive Orders 12866 (Regulatory Planning and Review) and 13563 (Improving Regulation and 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). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.

The OMB has not designated this rule a significant regulatory action under section 3(f) of Executive Order 12866, as amended by Executive Order 14094 (Modernizing Regulatory Review), and will not affect the Coast Guard's budget or increase Federal spending. A regulatory analysis follows.

This final rule involves non-substantive technical amendments and internal agency practices and procedures; it will not impose any additional costs. The technical amendments in this final rule fit into categories that involve (1) correcting inadvertent typographical errors in the CFR; (2) modifying existing language in the CFR by addition or subtraction to improve the readability or clarity of regulations; (3) removing irrelevant information, such as expired regulatory provisions or cancelled reference material, and replacing outdated regulatory information with current information where applicable; and (4) revising office contact information and mailing addresses. The Coast Guard does not expect that there will be any additional costs conferred on the public or the Federal Government, because none of the technical and editorial changes included in this final rule will change existing regulatory requirements. A summary of these amendments by category and by CFR title and section are presented below in table 1.

The unquantified benefits of the non-substantive technical amendments are increased accuracy of regulatory information by correcting erroneous information, and improved readability and clarity of regulations by removing redundant or confusing language and by removing expired or cancelled provisions that are no longer relevant. In addition, correcting technical items such as office contact details and location coordinates will improve the ability to reference and contact the correct entities.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, requires federal agencies to consider the potential impact on small entities when they issue a rule after being required to first publish a general notice of proposed rulemaking. Under 5 U.S.C. 604(a), a regulatory flexibility analysis is not required for this final rule because under provision in 553(b)(B) we were not required to publish a general notice of a proposed rulemaking. Therefore, we did not conduct a regulatory flexibility analysis for this rule.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121, we offer to assist small entities in understanding this final rule so that they can better evaluate its effects on them and participate in the rulemaking. The Coast Guard will not retaliate against small entities that question or complain about this final rule or any policy or action of the Coast Guard.

This final rule calls for no new collection of information nor does it change any existing collection of information under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3520.

A final rule has implications for federalism under Executive Order 13132 (Federalism) if it has a substantial direct effect on 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 final rule under Executive Order 13132 and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

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. Although this final rule will not result in such expenditure, we do discuss the effects of this final rule elsewhere in this preamble.

This final rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630 (Governmental Actions and Interference with Constitutionally Protected Property Rights).

This final rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988 (Civil Justice Reform) to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this final rule under Executive Order 13045 (Protection of Children from Environmental Health Risks and Safety Risks). This final rule is not an economically significant rule and will not create an environmental risk to health or risk to safety that might disproportionately affect children.

This final rule does not have tribal implications under Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), because it will 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.

We have analyzed this final rule under Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use). We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

The National Technology Transfer and Advancement Act, codified as a note to 15 U.S.C. 272, directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through OMB, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (for example, specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This final rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this final rule under DHS Management 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 made a determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble. This final rule is categorically excluded under paragraph A3 and L54 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev 1. Paragraph A3 pertains to “Promulgation of rules, issuance of rulings or interpretations, and the development and publication of policies, orders, directives, notices, procedures, manuals, advisory circulars, and other guidance documents of the following nature: (a) Those of a strictly administrative or procedural nature; (b) Those that implement, without substantive change, statutory or regulatory requirements; (c) Those that implement, without substantive change, procedures, manuals, and other guidance documents; (d) Those that interpret or amend an existing regulation without changing its environmental effect; (e) Technical guidance on safety and security matters; or (f) Guidance for the preparation of security plans.” Paragraph L54 pertains to “Regulations which are editorial or procedural, such as those updating addresses or establishing application procedures.” This final rule makes non-substantive technical, organizational, and conforming amendments to existing Coast Guard regulations.

This final rule is a continuation of our practice of periodically issuing rules to keep our regulations up-to-date and accurate. This final rule will have no substantive effect on the regulated public.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 1, 5, 104, 151, 155, 161,164, 165, 174, and 175 and 46 CFR parts 3, 15, 70, 117, 118, 119, and 147 as follows:

Under title VIII of the Alaska National Interest Lands Conservation Act (ANILCA) (16 U.S.C. 3111-3126), the Secretary of the Interior and the Secretary of Agriculture (Secretaries) jointly implement the Federal Subsistence Management Program (Program). The Program provides a preference for take of fish and wildlife resources for subsistence uses by rural residents on Federal public lands and waters in Alaska. The Secretaries published temporary regulations to carry out the Program in the Federal Register on June 29, 1990 (55 FR 27114), and published final regulations in the Federal Register on May 29, 1992 (57 FR 22940). These regulations have subsequently been amended a number of times. Because the Program is a joint effort between Interior and Agriculture, these regulations are located in two titles of the Code of Federal Regulations (CFR): Title 36, “Parks, Forests, and Public Property,” and Title 50, “Wildlife and Fisheries,” at 36 CFR 242.1-242.28 and 50 CFR 100.1-100.28, respectively. The regulations contain subparts as follows: Subpart A, General Provisions; Subpart B, Program Structure; Subpart C, Board Determinations; and Subpart D, Subsistence Taking of Fish and Wildlife.

Consistent with subpart B of these regulations, the Secretaries established a Federal Subsistence Board (Board) to administer the Program. The Board comprises:

• A Chair appointed by the Secretary of the Interior with concurrence of the Secretary of Agriculture;

• The Alaska Regional Director, U.S. Fish and Wildlife Service;

• The Alaska Regional Director, National Park Service;

• The Alaska State Director, Bureau of Land Management;

• The Alaska Regional Director, Bureau of Indian Affairs;

• The Alaska Regional Forester, USDA Forest Service; and

• Two public members appointed by the Secretary of the Interior with concurrence of the Secretary of Agriculture.

Through the Board, these agencies participate in the development of regulations for subparts C and D, which, among other things, set forth Program eligibility and specific harvest seasons and limits.

In administering the Program, the Secretaries divided Alaska into 10 subsistence resource regions, each of which is represented by a Federal Subsistence Regional Advisory Council (Council). The Councils provide a forum for rural residents with personal knowledge of local conditions and resource requirements to have a meaningful role in the subsistence management of fish and wildlife on Federal public lands in Alaska. The Council members represent varied geographical, cultural, and user interests within each region.

The U.S. District Court for Alaska (Court) in its October 17, 2011, order in Peratrovich et al. v. United States and the State of Alaska, 3:92-cv-0734-HRH (D. Alaska), enjoined the United States “to promptly initiate regulatory proceedings for the purpose of implementing the subsistence provisions in Title VIII of the Alaska National Interest Lands Conservation Act (ANILCA) with respect to submerged public lands within Tongass National Forest” and directed entry of judgment. The Peratrovich case dates to 1992 and has a long and involved procedural history. The plaintiffs in that litigation raised the question of which marine waters in the Tongass National Forest, if any, are subject to the jurisdiction of the Federal Subsistence Management Program. In its May 31, 2011, order, the Court stated that “it is the duty of the Secretaries [Agriculture & Interior] to identify any submerged lands (and the marine waters overlying them) within the Tongass National Forest to which the United States holds title.” It also stated that, if such title exists, it “creates an interest in [the overlying] waters sufficient to make those marine waters public lands for purposes of [the subsistence provisions] of ANILCA.”

Most of the marine waters within the Tongass National Forest were not initially identified in the regulations as public lands subject to the subsistence priority, initially based upon a determination that the submerged lands were State lands, and later through reliance upon a disclaimer of interest filed by the United States in Alaska v. United States, No. 128 Orig., 546 U.S. 413 (2006). In that case, the State of Alaska had sought to quiet title to all lands underlying marine waters in southeast Alaska, which includes most of the Tongass National Forest. Ultimately, the United States disclaimed ownership to most of the submerged lands in the Tongass National Forest. The Supreme Court accepted the disclaimer by the United States to title to the marine waters within the Tongass National Forest, excepting from that disclaimer several classes of submerged public lands that generally involve small tracts (see Alaska v. United States, 546 U.S. at 415).

When the United States took over subsistence management in Alaska in 1990 and promulgated the temporary regulations, the Departments of the Interior and Agriculture stated in response to comments on the scope of the program that “[t]he United States generally does not hold title to navigable waters and thus navigable waters generally are not included within the definition of public lands” (55 FR 27114 at 27115; June 29, 1990). That position was changed in 1999 when the subsistence priority was extended to inland waters subject to a Federal reserved water right following the Katie John litigation. While locating these inland waters, the Board also identified certain submerged marine lands that did not pass to the State and, therefore, were subject to the subsistence priority. However, the Board did not attempt to identify every small parcel of submerged public lands and associated marine waters possibly subject to the Program because of the potentially overwhelming administrative burden. Instead, the Board invited the public to petition to have submerged marine lands included. Over the years, several small areas of submerged marine lands in the Tongass National Forest have been identified as public lands subject to the subsistence priority.

In its May 31, 2011, order, the Court in the Peratrovich case stated that the petition process was not sufficient and found that “concerns about costs and management problems simply cannot trump the congressional policy that the subsistence lifestyle of rural Alaskans be preserved as to public lands.” The Court acknowledged in its order that inventorying all these lands could be an expensive undertaking, but that it is a burden “necessitated by the `complicated regulatory scheme' which has resulted from the inability of the State of Alaska to implement Title VIII of ANILCA.” The Court then enjoined the United States “to promptly initiate regulatory proceedings for the purpose of implementing the subsistence provisions in Title VIII of ANILCA with respect to submerged public lands within Tongass National Forest” and directed entry of judgment.

Following the Court's decision, the Departments published a notice in the Federal Register (77 FR 33391; June 6, 2012) announcing the initiation of reviews of pre-statehood withdrawals and reservation in the Tongass National Forest. The Bureau of Land Management (BLM) and the USDA-Forest Service (USDA-FS) started a review of hundreds of potential pre-statehood (January 3, 1959) withdrawals in the marine waters of the Tongass National Forest. These reviews included dock sites, log transfer sites, and other areas that may not have passed to the State at statehood. On June 8, 2016, the Departments published a proposed rule in the Federal Register (81 FR 36836) that listed the initial findings identifying pre-statehood withdrawals, and on May 23, 2018, the Departments published a final rule (83 FR 23813) to revise the subsistence management regulations to add those submerged parcels. The Departments published another proposed rule on May 12, 2022 (87 FR 29061), with the intent to complete regulatory proceedings addressing submerged public lands within the Tongass National Forest as directed by the Court. This rule will complete those proceedings.

The Departments published a proposed rule on May 12, 2022 (87 FR 29061), to amend the applicability and scope section of subpart A of 36 CFR part 242 and 50 CFR part 100 and to complete the actions on the Tongass National Forest submerged lands. The proposed rule opened a comment period, which closed on August 10, 2022, and announced public meetings to be held in several different locations throughout the State. The Departments advertised the proposed rule by mail, email, web page, social media, radio, and newspaper, and comments were submitted via https://www.regulations.gov to Docket No. FWS-R7-SM-2018-0013. The Councils received public comments on the proposed rule during their public meetings. The Councils had an opportunity to review the proposed rule and make recommendations to the Board for the final rule as described in more detail below.

The Board held a public meeting on January 31 through February 3, 2023. All briefings and documents presented to the Board were available to the public at https://www.doi.gov/subsistence, and the meeting was advertised by mail, email, web page, social media, radio, and newspaper. After a briefing and deliberation, the Board decided on the following recommendation to the Secretaries: “The Federal Subsistence Board recommends to the Secretaries that the lands listed in the proposed rule of May 12, 2022 (87 FR 29061), be included in the Subsistence Management Regulations for Public Lands in Alaska (36 CFR [part] 242 and 50 CFR [part] 100) for the purpose of implementing the subsistence provisions in Title VIII of the Alaska National Interest Lands Conservation Act.”

These final regulations reflect the Board's recommendation to the Secretaries after review and consideration of Council recommendations, Tribal and Alaska Native corporation consultations, and public comments. The public received extensive opportunity to review and comment on all changes.

The Board did not receive any public comments that directly pertain to the primary issue of this rulemaking action. The Southeast Alaska Council did not object to these lands coming under Federal subsistence jurisdiction after maps were provided by the USDA-FS, as had been previously requested. The Southcentral Alaska, Kodiak/Aleutians, Bristol Bay, Yukon-Kuskokwim Delta, Western Interior Alaska, Seward Peninsula, Eastern Interior Alaska, and North Slope Councils had no comments and took no actions. The Kodiak/Aleutian Council requested that the Councils and the public be notified when the final rule has been published and that this information be posted on the Program's website.

Tribal consultation was offered statewide. No tribal entity requested specific consultation and no comments were offered via correspondence, during public hearings, or during consultations on different issues.

Following publication of the proposed rule, the USDA-FS cartographer reviewed the table of geographic areas in the proposed rule and noted the following duplicate entries:

• High Point, Woronkofski Island;

• Key Reef, Clarence Strait;

• Lyman Point, Clarence Strait;

• Ship Island, Clarence Strait; and

• Point Hilda, Stephens Passage, Douglas Island.

Accordingly, in this final rule, we have corrected the table of geographic areas by removing those duplicate entries.

Additionally, the latitude information for Lyman Point and Clarence Strait was also revised because the original latitude was inaccurate.

Because this rule concerns public lands managed by an agency or agencies in both the Departments of Agriculture and the Interior, identical text will be incorporated into 36 CFR part 242 and 50 CFR part 100.

The Departments, through the Board, have provided extensive opportunity for public input and involvement in compliance with Administrative Procedure Act (5 U.S.C. 551 et seq. ) requirements, including publishing a proposed rule in the Federal Register , participation in multiple Council meetings, additional public review and comment on all proposals for regulatory change, and an opportunity for additional public comment before the Board deliberated on its recommendation to the Secretaries. Therefore, the Departments believe that all affected persons have been given sufficient public notice and opportunity for involvement on the Board's recommendation and the final rule.

In the more than 30 years that the Program has been operating, there has never been a benefit to the public by delaying the effective date of the subsistence regulations. A lapse in regulatory control can affect the continued viability of fish or wildlife populations and future subsistence opportunities for rural Alaskans and would generally fail to serve the overall public interest. Therefore, the Departments finds good cause pursuant to 5 U.S.C. 553(d)(3) to make this rule effective upon the date set forth in DATES to ensure continued operation of the Program.

A draft environmental impact statement that described four alternatives for developing a Federal Subsistence Management Program was distributed for public comment on October 7, 1991. The final environmental impact statement (FEIS) was published on February 28, 1992. The Record of Decision (ROD) on Subsistence Management for Federal Public Lands in Alaska was signed April 6, 1992. The selected alternative in the FEIS (Alternative IV) defined the administrative framework of an annual regulatory cycle for subsistence regulations.

The following Federal Register documents pertain to this rulemaking:

A 1997 environmental assessment dealt with the expansion of Federal jurisdiction over fisheries and is available at the office listed under FOR FURTHER INFORMATION CONTACT . The Secretary of the Interior, with concurrence of the Secretary of Agriculture, determined that expansion of Federal jurisdiction does not constitute a major Federal action significantly affecting the human environment and, therefore, signed a Finding of No Significant Impact.

An ANILCA section 810 analysis was completed as part of the FEIS process on the Federal Subsistence Management Program in the early 1990s. The intent of all Federal subsistence regulations is to accord subsistence uses of fish and wildlife on public lands a priority over the taking of fish and wildlife on such lands for other purposes, unless restriction is necessary to conserve healthy fish and wildlife populations. The final section 810 analysis determination appeared in the April 6, 1992, ROD and concluded that the Program, under Alternative IV with an annual process for setting subsistence regulations, may have some local impacts on subsistence uses, but will not likely restrict subsistence uses significantly.

In accordance with ANILCA section 810, an environmental assessment was prepared in 1997 on the expansion of Federal jurisdiction over fisheries. That evaluation also supported the Secretaries' determination that the rule will not reach the “may significantly restrict” threshold that would require notice and hearings under ANILCA section 810(a).

An agency may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. This rule does not contain any new collections of information that require OMB approval. OMB has reviewed and approved the collections of information associated with the subsistence regulations at 36 CFR part 242 and 50 CFR part 100, and assigned OMB Control Number 1018-0075, which expires January 31, 2024 (in accordance with regulations at 5 CFR 1320, the Services are authorized to continue sponsoring the collection while the submission is pending at OMB).

Executive Order 12866, as reaffirmed by E.O. 13563 and E.O. 14094 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this rule is not significant.

Executive Order 14094 reaffirms the principles of E.O. 12866 and E.O. 13563 and states that regulatory analysis should facilitate agency efforts to develop regulations that serve the public interest, advance statutory objectives, and are consistent with E.O. 12866, E.O. 13563, and the Presidential Memorandum of January 20, 2021 (Modernizing Regulatory Review). E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq. ) requires preparation of regulatory flexibility analyses for rules that will have a significant effect on a substantial number of small entities, which include small businesses, organizations, or governmental jurisdictions. In general, the resources to be harvested under this rule are already being harvested and consumed by the local harvester and do not result in an additional dollar benefit to the economy. However, we estimate that two million pounds of meat are harvested by subsistence users annually and, if given an estimated dollar value of $3.00 per pound, this amount would equate to about $6 million in food value Statewide. Based upon the amounts and values cited above, the Departments certify that this rulemaking will not have a significant economic effect on a substantial number of small entities within the meaning of the Regulatory Flexibility Act.

Under the Congressional Review Act (5 U.S.C. 804(2)), this rule is not a major rule. It does not have an effect on the economy of $100 million or more, will not cause a major increase in costs or prices for consumers, and does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

Title VIII of ANILCA requires the Secretaries to administer a subsistence priority on public lands. The scope of the Program is limited by definition to certain public lands. Likewise, these regulations have no potential takings of private property implications as defined by Executive Order 12630.

The Secretaries have determined and certify pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that this rulemaking will not impose a cost of $100 million or more in any given year on local or State governments or private entities. The implementation of this rule is by Federal agencies, and there is no cost imposed on any State or local entities or tribal governments.

The Secretaries have determined that these regulations meet the applicable standards provided in sections 3(a) and 3(b)(2) of E.O. 12988, regarding civil justice reform.

In accordance with E.O. 13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. Title VIII of ANILCA precludes the State from exercising subsistence management authority over fish and wildlife resources on Federal lands unless it meets certain requirements.

The Alaska National Interest Lands Conservation Act, Title VIII, does not provide specific rights to tribes for the subsistence taking of wildlife, fish, and shellfish. However, the Departments, through the Board, provided Federally recognized Tribes and Alaska Native corporations opportunities to consult on this rule. Consultation with Alaska Native corporations are based on Public Law 108-199, div. H, Sec. 161, Jan. 23, 2004, 118 Stat. 452, as amended by Public Law 108-447, div. H, title V, Sec. 518, Dec. 8, 2004, 118 Stat. 3267, which provides that: “The Director of the Office of Management and Budget and all Federal agencies shall hereafter consult with Alaska Native corporations on the same basis as Indian tribes under Executive Order No. 13175.”

The Secretaries, through the Board, provided a variety of opportunities for consultation: commenting on proposed changes to the existing rule; engaging in dialogue at the Council meetings; engaging in dialogue at the Board's meetings; and providing input in person, by mail, email, or phone at any time during the rulemaking process.

The Board provided Federally recognized Tribes and Alaska Native corporations a specific opportunity to consult on this rule prior to the start of its public regulatory meeting held during January and February 2023. Federally recognized Tribes and Alaska Native corporations were notified by mail, email, and telephone and were given the opportunity to attend in person or via teleconference.

Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. However, this rule is not a significant regulatory action under E.O. 13211, affecting energy supply, distribution, or use, and no Statement of Energy Effects is required.

Theo Matuskowitz drafted these regulations under the guidance of Amee Howard, Assistant Regional Director, Office of Subsistence Management, Alaska Regional Office, U.S. Fish and Wildlife Service, Anchorage, Alaska. Additional assistance was provided by

• Paul McKee, Alaska State Office, Bureau of Land Management;

• Dr. Kim Jochum, Alaska Regional Office, National Park Service;

• Dr. Glenn Chen, Alaska Regional Office, Bureau of Indian Affairs;

• Jill Klein, Alaska Regional Office, U.S. Fish and Wildlife Service; and

• Gregory Risdahl, Alaska Regional Office, USDA-Forest Service.

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

The rules that are the subject of the EPA's current action were adopted by the ADEQ and submitted to the EPA on December 6, 2022 (“December 2022 NSR submittal”). On January 2, 2024 (89 FR 39), the EPA proposed to approve these rules, listed in Table 1 below, into the ADEQ portion of the Arizona SIP.

The ADEQ's December 2022 NSR submittal also requested that, as part of this action, the EPA remove from the ADEQ portion of the Arizona SIP the previous SIP-approved versions of the same rules. The rules that the ADEQ requested be removed from the SIP, and which the EPA proposed to remove from the SIP, are listed in Table 2 below.

In our proposed action, we also proposed to determine that with these rule revisions, the ADEQ's SIP-approved NSR program satisfies the requirements for the preconstruction review and permitting of major sources and major modifications under part D of title I of the Act for areas designated nonattainment with the 2015 ozone NAAQS with a Marginal classification, for areas and sources within the ADEQ's permitting jurisdiction. Our proposed action contains more information on the rules and our evaluation.

The EPA's proposed action provided a 30-day public comment period. During this period, no comments were submitted on our proposal. Therefore, the EPA continues to find that the submitted rules should be approved into the Arizona SIP because they fulfill all relevant CAA requirements. We have concluded that our approval of the submitted rules will comply with the relevant provisions of CAA sections 110(a)(2), 110(l), 165, 172(c)(5), 173, and 193, and 40 CFR 51.160-51.166. We also find that with the submitted rule revisions, the ADEQ's NSR program satisfies the requirements for the preconstruction review and permitting of major sources and major modifications under part D of title I of the Act for areas designated nonattainment with the 2015 ozone NAAQS with a Marginal classification, for the areas and sources within ADEQ's permitting jurisdiction. Therefore, as authorized in section 110(k)(3) of the Act, the EPA is approving the submitted rules listed in Table 1 into the Arizona SIP and removing the versions listed in Table 2 from 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 incorporating by reference the following ADEQ rules: A.A.C. R18-2-101 (except 20) (effective 5/4/2020) and R18-2-404 (effective 5/4/2022), which govern the issuance of permits for stationary sources. These rules are intended to address the CAA's statutory and regulatory requirements for New Source Review permit programs for major sources emitting nonattainment air pollutants and their precursors under parts C and D of title I of the CAA. The EPA has made, and will continue to make, these materials available through https://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 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 CAA. 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 Northern Pacific Halibut Act of 1982 (Halibut Act), 16 U.S.C. 773-773k, gives the Secretary of Commerce responsibility for implementing the provisions of the Convention between Canada and the United States for the Preservation of the Halibut Fishery of the North Pacific Ocean and Bering Sea (Halibut Convention), signed at Ottawa, Ontario, on March 2, 1953, as amended by a Protocol Amending the Convention (signed at Washington, DC, on March 29, 1979). The Halibut Act requires that the Secretary of Commerce adopt regulations to carry out the purposes and objectives of the Halibut Convention and Halibut Act (16 U.S.C. 773c). Additionally, as provided in the Halibut Act, the Regional Fishery Management Councils having authority for the geographic area concerned may develop, and the Secretary of Commerce may implement, regulations governing Pacific halibut fishing in in U.S. waters that are in addition to, and not in conflict with, approved IPHC regulations (16 U.S.C. 773c(c)).

At its annual meeting held January 22-26, 2024 the IPHC adopted an Area 2A catch limit also known as the fishery constant exploitation yield (FCEY) of 1.47 million pounds (lb; 666.8 metric tons [mt]) of Pacific halibut. The FCEY was derived from the total constant exploitation yield (TCEY) of 1.65 million lb (748.4 mt) for Area 2A, which includes commercial discards and bycatch estimates calculated using a formula developed by the IPHC. The Area 2A catch limit and commercial fishery allocations were adopted by the IPHC and were accepted by the Secretary of State, with concurrence from the Secretary of Commerce, in accordance with 50 CFR 300.62 on March 9, 2024. This final rule contains 2024 recreational fishery subarea allocations based on the Area 2A catch limit adopted by the IPHC that were published in the Federal Register on March 18, 2024 (89 FR 19275). Additionally, the March 18, 2024 (89 FR 19275) final rule contains annual domestic management measures and IPHC regulations that are published each year under NMFS' authority to implement the Halibut Convention (50 CFR 300.62).

Since 1988, the Pacific Fishery Management Council (Council) has developed a Catch Sharing Plan that allocates the IPHC regulatory Area 2A Pacific halibut catch limit between treaty tribal and non-tribal harvesters and among non-tribal commercial and recreational (sport) fisheries. NMFS has implemented at 50 CFR 300.63 et seq. certain provisions of the Catch Sharing Plan and implemented in annual rules annual management measures consistent with the Catch Sharing Plan. In 1995, the Council recommended and NMFS approved a long-term Area 2A Catch Sharing Plan (60 FR 14651; March 20, 1995). NMFS has been approving adjustments to the Area 2A Catch Sharing Plan based on Council recommendations each year to address the changing needs of these fisheries. While the full Catch Sharing Plan is not published in the Federal Register , it is made available on the Council website: https://www.pcouncil.org/documents/2024/01/2024-pacific-halibut-catch-sharing-plan.pdf/.

This rule approves the changes the Council recommended at its November 2023 meeting to the Catch Sharing Plan for Area 2A. The recommended changes to the Catch Sharing Plan were developed through the Council's public process. The changes to the Catch Sharing Plan were detailed in the proposed rule and are not repeated here.

This rule also implements recreational Pacific halibut fishery management measures for 2024, which include season opening and closing dates, bag limits, a new subarea off California, and a new inseason action to reallocate or transfer recreational fishery allocation between states. These management measures are consistent with the recommendations made by the Council for the 2024 Catch Sharing Plan and the season dates recommended by the states during the proposed rule's public comment period, where applicable, and which are detailed below.

NMFS is implementing recreational fishery management measures consistent with the Council's recommendations for the 2024 Catch Sharing Plan. If there is any discrepancy between the Catch Sharing Plan and federal regulations, federal regulations take precedence. These provisions may be modified through inseason action consistent with 50 CFR 300.63(c). All recreational fishing in Area 2A is managed on a “port of landing” basis, whereby any halibut landed into a port counts toward the allocation for the area in which that port is located, and the regulations governing the area of landing apply, regardless of the specific area of catch. The 2024 recreational fishing subareas, allocations, fishing dates, and daily bag limits are described below:

The allocation for landings into ports in Puget Sound and the U.S. waters in the Strait of Juan de Fuca is 81,729 lb (37.1 mt).

(a) The Puget Sound is open 7 days a week from April 4 through June 30. If the subarea allocation remains for at least another full day of fishing after June 30, NMFS may take inseason action to reopen the fishery in August, up to 7 days per week, through September. The area will close when there is not sufficient subarea allocation for another full day of fishing. Any inseason action, including closures, will be announced in accordance with Federal regulations at 50 CFR 300.63(c) and on the NMFS hotline at (206) 526-6667 or (800) 662-9825.

(b) The daily bag limit is one Pacific halibut of any size per person.

The allocation for landings into ports in the Washington North Coast subarea is 132,366 lb (60.0 mt).

(a) The Washington North Coast is open:

• May 2, 3, 4;

• May 9, 10, 11;

• May 16, 17, 18;

• May 24;

• May 26;

• May 30, 31, June 1;

• June 6, 7, 8;

• June 13, 14, 15;

• June 20, 21, 22; and

• June 27, 28, 29.

If the subarea allocation remains for at least another full day of fishing after June 30, NMFS may take inseason action to reopen the fishery in August, up to 7 days per week, through September. The area will close when there is not sufficient subarea allocation for another full day of fishing. Any inseason action, including closures, will be announced in accordance with Federal regulations at 50 CFR 300.63(c) and on the NMFS hotline at (206) 526-6667 or (800) 662-9825.

(b) daily bag limit is one Pacific halibut of any size per person.

The allocation for landings into ports in the Washington South Coast subarea is 67,074 lb (30.4 mt) with 65,074 lb (29.5 mt) allocated to the primary fishery and 2,000 lb (0.9 mt) to the nearshore fishery.

(a) The Washington South Coast primary fishery is open:

• May 2, 5, 7;

• May 9, 12, 14;

• May 16, 19, 21; and

• May 23.

If sufficient subarea allocation remains for at least another full day of fishing after May 30, the primary fishery will reopen:

• June 13, 16, 18;

• June 20, 23, 25;

• June 27, and 30; or

• until there is not sufficient subarea allocation for another full day of fishing.

If the subarea allocation remains for at least another full day of fishing after June 30, NMFS may take inseason action to reopen the fishery in August, up to 7 days per week, through September. The area will close when there is not sufficient subarea allocation for another full day of fishing. Any inseason action, including closures, will be announced in accordance with Federal regulations at 50 CFR 300.63(c) and on the NMFS hotline at (206) 526-6667 or (800) 662-9825.

When the Washington South Coast subarea primary fishery does not have sufficient allocation to open for at least another full day of fishing, any remaining primary fishery allocation will be used to open a nearshore fishery. The nearshore fishery will open for 7 days a week the first Saturday after the closure of the primary fishery. The area will close when there is not sufficient subarea allocation for another full day of fishing. Any inseason action, including closures, will be announced in accordance with Federal regulations at 50 CFR 300.63(c) and on the NMFS hotline at (206) 526-6667 or (800) 662-9825.

If the primary fishery is closed prior to September 30 and there is not sufficient allocation remaining for at least a full day of fishing in the nearshore fishery, NMFS may take inseason action to transfer any remaining subarea allocation to another Washington coastal subarea, in accordance with Federal regulations at 50 CFR 300.63(c).

(b) The daily bag limit is one Pacific halibut of any size per person.

The allocation for landings into ports in the Columbia River subarea is 18,612 lb (8.4 mt), with 18,112 lb (8.2 mt) allocated to the all-depth fishery and 500 lb (0.2 mt) allocated to the nearshore fishery.

(a) The all-depth fishery is open:

• May 2, 5, 7;

• May 9, 12, 14;

• May 16, 19, 21;

• May 23, 26;

• May 30, June 2, 4;

• June 6, 9, 11;

• June 13, 16, 18;

• June 20, 23, 25; and

• June 27, 30.

The nearshore fishery is open:

• May 6, 7, 8;

• May 13, 14, 15;

• May 20, 21, 22;

• May 27, 28, 29;

• June 3, 4, 5;

• June 10, 11, 12;

• June 17, 18, 19;

• June 24, 25, 26;

• July 1, 2, 3;

• July 8, 9, 10;

• July 15, 16, 17;

• July 22, 23, 24;

• July 29, 30, 31;

• August 5, 6, 7;

• August 12, 13, 14;

• August 19, 20, 21;

• August 26, 27, 28;

• September 2, 3, 4;

• September 9, 10, 11;

• September 16, 17, 18;

• September 23, 24, 25; and

• September 30.

The area will close when there is not sufficient subarea allocation for another full day of fishing. Any remaining subarea allocation may be transferred inseason to other Washington or Oregon subareas, by NMFS, in accordance with Federal regulations at 50 CFR 300.63(c). Any inseason action, including closures, will be announced in accordance with Federal regulations at 50 CFR 300.63(c) and on the NMFS hotline at (206) 526-6667 or (800) 662-9825. Any remaining subarea allocation would be transferred to each state in proportion to the allocation formula in the Catch Sharing Plan.

(b) The daily bag limit is one Pacific halibut of any size per person.

The allocation for landings into ports in the Oregon Central Coast subarea is 266,161 lb (120.7 mt). The nearshore fishery allocation is 31,393 lb (14.5 mt), the spring all-depth fishery allocation is 167,681 lb (76.1 mt), and the summer all-depth fishery allocation is 66,540 lb (30.2 mt).

(a) The nearshore fishery is open 7 days a week from May 1 through October 31. The area will close when there is not sufficient subarea allocation for another full day of fishing. Any inseason action, including closures, will be announced in accordance with Federal regulations at 50 CFR 300.63(c) and on the NMFS hotline at (206) 526-6667 or (800) 662-9825.

The spring all-depth fishery is open 7 days a week from May 1 through June 30. In the event that there is remaining subarea allocation after June 30, NMFS may take inseason action to reopen the fishery, up to 7 days a week, during the month of July. The area will close when there is not sufficient subarea allocation for another full day of fishing. Any inseason action, including closures, will be announced in accordance with Federal regulations at 50 CFR 300.63(c) and on the NMFS hotline at (206) 526-6667 or (800) 662-9825.

The summer all-depth fishery is open:

• August 1, 2, 3;

• August 15, 16, 17;

• August 29, 30, 31;

• September 12, 13, 14;

• September 26, 27, 28;

• October 10, 11, 12;

• October 24, 25, 26; and

• October 31.

The area will close when the remaining combined spring all-depth fishery and summer all-depth fishery allocations in the Oregon Central Coast subarea is not sufficient for another full day of fishing. Any inseason action, including closures, will be announced in accordance with Federal regulations at 50 CFR 300.63(c) and on the NMFS hotline at (206) 526-6667 or (800) 662-9825.

(b) The daily bag limit is two Pacific halibut of any size per person. NMFS will announce bag limits in accordance with notice procedures at 50 CFR 300.63(c)(3) and on the NMFS hotline (206) 526-6667 or (800) 662-9825.

The allocation for landings into ports in the Southern Oregon subarea is 8,000 lb (3.6 mt).

(a) The fishery is open 7 days a week from May 1 through October 31. The area will close when there is not sufficient subarea allocation for another full day of fishing. Any inseason action, including closures, will be announced in accordance with Federal regulations at 50 CFR 300.63(c) and on the NMFS hotline at (206) 526-6667 or (800) 662-9825.

(b) The daily bag limit is two Pacific halibut of any size per person. NMFS will announce bag limits in accordance with notice procedures at 50 CFR 300.63(c)(3) and on the NMFS hotline (206) 526-6667 or (800) 662-9825.

The allocation for landings into ports in the Northern California Coast subarea is 37,720 lb (17.1 mt).

(a) The fishery is open May 1 through November 15. The area will close when there is not sufficient subarea allocation for another full day of fishing. Any inseason action, including closures, will be announced in accordance with Federal regulations at 50 CFR 300.63(c) and on the NMFS hotline at (206) 526-6667 or (800) 662-9825.

(b) The daily bag limit is one Pacific halibut of any size per person.

The allocation for landings into ports in the South of Point Arena subarea is 500 lb (0.2 mt).

(a) The fishery is open May 1 through December 31. The area will close when there is not sufficient subarea allocation for another full day of fishing. Any inseason action, including closures, will be announced in accordance with Federal regulations at 50 CFR 300.63(c) and on the NMFS hotline at (206) 526-6667 or (800) 662-9825.

(b) The daily bag limit is one Pacific halibut of any size per person.

NMFS published a proposed rule on February 9, 2024 (89 FR 9105) and accepted public comments on the 2024 Area 2A Catch Sharing Plan and the proposed 2024 annual management measures through March 11, 2024. NMFS received four responsive comments, one from the Oregon Department of Fish and Wildlife (ODFW) and three from the public, and has responded to those below. NMFS also received one comment from a member of the public that was not responsive to the proposed action and is therefore not addressed here.

Comment 1: ODFW submitted a comment recommending final recreational fishing season dates for the 2024 season for the Central Oregon Coast subarea. ODFW conducted an online survey and public meeting following the IPHC annual meeting. Based on the resulting stakeholder input, past fishing effort and harvest rates, other fishing opportunities, weather impacts, and the risk of exceeding the combined spring and summer all-depth fishery allocations, ODFW recommended season dates for the spring and summer Central Oregon Coast all-depth fisheries. For spring, ODFW recommended open dates of May 1 through June 30, 7 days per week. In the event that there is remaining subarea allocation following the initial open dates, ODFW recommended the spring fishery open July 1-31, 7 days a week. ODFW recommended summer fishery dates of August 1-3; August 15-17; August 29-31; September 12-14; September 26-28; October 10-12; and October 24-26; and October 31, or until the total 2024 all-depth catch limit for the subarea is taken. ODFW also recommended a two-fish Pacific halibut bag limit per angler per day beginning May 1 for the Oregon Central Coast and Southern Oregon subareas.

Response: NMFS concurs that the ODFW-recommended season dates are appropriate. There are a few differences between the spring and summer all-depth season dates NMFS published in the proposed rule and those recommended by ODFW. However, based on the rationale provided by ODFW, NMFS has modified the recreational fishery season dates off of Oregon, approved in this final rule, to those recommended by ODFW.

Comment 2: NMFS received public comment on the recreational allocations, which requested a greater allocation for the California recreational fishery.

Response: Allocations to various sectors and states that are established in the Catch Sharing Plan and implemented through annual IPHC regulations were not considered through this action. As part of the Council process, the NMFS will consider modifications to the Area 2A Catch Sharing Plan, which includes the allocation schemes for the tribal and the non-tribal commercial and recreational fisheries. Interested parties can comment directly on state-specific allocations as part of that process, which is described at https://www.pcouncil.org/.

Comment 3: NMFS received a comment from the Crescent City Fishing Group, which indicated support for the proposed measures to conserve and manage the Pacific halibut fisheries, but also expressed concern that climate change is a stressor on the marine ecosystem and that fisheries management should respond with greater caution to the impacts of climate change.

Response: Overall fishery limits were not part of this action; however, this action is based on the best scientific information available. NMFS agrees that there are increased stressors on marine ecosystems due to climate change and, consistent with its statutory and other obligations, works to manage all federally regulated fisheries, including Pacific halibut fisheries off the coasts of Washington, Oregon, and California, in a sustainable manner. In making their recommendation for the 2024 Pacific halibut fishing limits, the IPHC noted that the uncertainty associated with ongoing changes to the relevant ecosystem and climate remains high, and that the IPHC intends to continue to evaluate the effects of climate change on Pacific halibut as part of its ongoing management actions.

Comment 4: NMFS received comment from a member of the public, expressing the opinion that larger Pacific halibut should not be allowed to be kept when caught, due to those larger halibut's reproductive capacity. The comment also made a statement on halibut bycatch that is not related to this action.

Response: NMFS has determined that this action is based on the best scientific information available and will appropriately conserve and manage Pacific halibut stocks off the coasts of Washington, Oregon, and California consistent with the requirements of Federal law. As part of its ongoing biological research activities, the IPHC is examining the factors that influence (1) the biomass of the Pacific halibut population ( e.g., distribution and movement of fish among IPHC regulatory areas; growth patterns and environmental influences on growth in larval, juvenile and adult fish; drivers of changes in size-at-age); (2) the spawning (female) population ( e.g., reproductive maturity, skipped spawning, reproductive migrations); and (3) any resulting changes in population dynamics in order to ensure proper management of the Pacific halibut resource now and in the future. Consistent with its statutory and other obligations, NMFS will continue to keep abreast of the IPHC's ongoing research and to ensure that its regulatory actions, including its approval of annual Pacific halibut management measures, are based on the best scientific information available.

Under section 773 of the Halibut Act, the Council may develop, and the Secretary of Commerce may implement, regulations governing Pacific halibut fishing by U.S. fishermen in Area 2A that are in addition to, and not in conflict with, approved IPHC regulations (16 U.S.C. 773c(c)). The final rule is consistent with the Council and NMFS's authority under the Halibut Act.

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

NMFS finds good cause to waive the 30-day delay in the date of effectiveness and make the 2024 Area 2A recreational fishery management measures ( i.e., season dates and bag limits) in this rule effective in time for the start of the recreational Pacific halibut fisheries off the coasts of Washington, Oregon, and California on April 4, 2024, pursuant to 5 U.S.C. 553(d)(3). The 2024 Catch Sharing Plan provides the framework for the annual management measures and for setting subarea allocations based on annual catch limits set by the IPHC. This rule implements 2024 Area 2A subarea allocations as published in the proposed rule (89 FR 9105; February 9, 2024) for the recreational Pacific halibut fishery, based on the formulas set in the Catch Sharing Plan, and using the 2024 Area 2A catch limit for Pacific halibut set by the IPHC and accepted by the Secretary of State, with concurrence from the Secretary of Commerce, in accordance with 50 CFR 300.62, on March 9, 2024. Relatively few comments were received in response to the proposed rule; the comments raised few issues within the scope of this rulemaking, and minor changes were made to accommodate the comments received from the State of Oregon. With few changes from the proposed rule, there is less need for a delay in effective date.

Delaying the effective date of the annual management measures would be contrary to the public interest. The Council's 2024 Catch Sharing Plan includes changes that respond to the needs of the fisheries in each state, including fisheries that begin in early April. The 2024 Catch Sharing Plan and management measures were developed through multiple Council meetings in 2023, which are open to the public and where public comment was accepted. Additionally, the 2024 Catch Sharing Plan and management measures were described at the January 2024 IPHC meeting, where public comment was also accepted. A delay in the effectiveness of these measures for 30 days would result in the West Coast's Pacific halibut recreational fisheries not being opened on their intended timelines and, thus, the fisheries not being open on the dates that the affected public is expecting. The recreational Pacific halibut fisheries have high participation, and some subareas close months before the end of the season due to subarea allocation attainment. If the fisheries do not open on their intended timelines, fishing opportunity is lost, potentially causing social and economic harm to communities at recreational fishing ports.

As a result of the potential harm to fishing communities that could be caused by delaying the effectiveness of these management measures, NMFS finds good cause to relieve a regulatory restriction as per 5 U.S.C. 553(d)(1) and waive the 30-day delay in the date of effectiveness and make this final rule effective on April 4, 2024.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities for purposes of the Regulatory Flexibility Act. The factual basis for the certification was published in the proposed rule and is not repeated here. As a result, a regulatory flexibility analysis was not required for this action and none was prepared.

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

For the reasons set out in the preamble, NMFS amends 50 CFR part 300, subpart E, as follows: