The SAMMI was an early integrated award environment moniker for what became the UEI. All references to SAMMI were removed from discussions and communications once the UEI became the official term utilized.

7 CFR part 1719. Section 1719.5(b)(2)(ii) is amended to remove the reference to SAMMI as it is no longer used.

This final rule contains no reporting or recordkeeping provisions requiring Office of Management and Budget (OMB) approval under the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35).

RD is committed to the E-Government Act, which requires Government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible and to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

This final rule is not subject to the requirements of Executive Order 12372, “Intergovernmental Review of Federal Programs,” as implemented under USDA's regulations at 2 CFR part 415, subpart C.

This final rule is exempt from OMB review for purposes of Executive Order 12866 and, therefore, has not been reviewed by OMB.

The policies contained in this rule do not have any 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. Nor does this rule impose substantial direct compliance costs on State and local governments. Therefore, consultation with the States is not required.

This rule is not subject to the Congressional Review Act (“CRA”) (5 U.S.C. 801 et seq. ), as the CRA provides an exemption for any rule relating to agency management or personnel and for rules relating to agency organization, procedure, or practice that does not substantially affect the rights or obligations of non-agency parties.

The Regulatory Flexibility Act (5 U.S.C. 601-602) (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act (“APA”) or any other statute. The Administrative Procedures Act exempts from notice and comment requirements rules “relating to agency management or personnel or to public property, loans, grants, benefits, or contracts” (5 U.S.C. 553(a)(2)), so therefore an analysis has not been prepared for this rule.

This final rule contains no Federal Mandates (under the regulatory provision of title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. chapter 25) for State, local, and Tribal governments, or the private sector. Thus, this final rule is not subject to the requirements of sections 202 and 205 of the Unfunded Mandates Reform Act of 1995.

In accordance with the National Environmental Policy Act of 1969, Public Law 91-190, this final rule has been reviewed in accordance with 7 CFR part 1970 (“Environmental Policies and Procedures”). The Agency has determined that: (i) This action meets the criteria established in 7 CFR 1970.53(f); (ii) No extraordinary circumstances exist; and (iii) The action is not “connected” to other actions with potentially significant impacts, is not considered a “cumulative action” and is not precluded by 40 CFR 1506.1. Therefore, the Agency has determined that the action does not have a significant effect on the human environment, and therefore neither an Environmental Assessment nor an Environmental Impact Statement is required.

This Executive order imposes requirements on RUS in the development of regulatory policies that have Tribal implications or preempt Tribal laws. RUS has determined that the final rule does not have a substantial direct effect on one or more Indian Tribe(s) or on either the relationship or the distribution of powers and responsibilities between the Federal Government and Indian Tribes. Thus, this final rule is not subject to the requirements of Executive Order 13175. If Tribal leaders are interested in consulting with RUS on this final rule, they are encouraged to contact USDA's Office of Tribal Relations or RD's Native American Coordinator at: AIAN@usda.gov to request such a consultation.

The Assistance Listing Number assigned to the program affected by this final rule is 10.751—Rural Energy Savings Program.

RD has reviewed this final rule in accordance with USDA Regulation 4300-4, Civil Rights Impact Analysis, to identify any major civil rights impacts the rule might have on program participants on the basis of age, race, color, national origin, sex, disability, marital or familial status. Based on the review and analysis of the rule and all available data, issuance of this final rule is not likely to negatively impact low and moderate-income populations, minority populations, women, Indian Tribes or persons with disability, by virtue of their age, race, color, national origin, sex, disability, or marital or familial status. No major civil rights impact is likely to result from this final rule.

In accordance with Federal civil rights laws and USDA civil rights regulations and policies, the USDA, its Mission Areas, agencies, staff offices, employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.

Program information may be made available in languages other than English. Persons with disabilities who require alternative means of communication to obtain program information ( e.g., Braille, large print, audiotape, American Sign Language) should contact the responsible Mission Area, agency, or staff office; or the 711 Relay Service.

To file a program discrimination complaint, a complainant should complete a Form AD-3027, USDA Program Discrimination Complaint Form, which can be obtained online at www.usda.gov/sites/default/files/documents/ad-3027.pdf, from any USDA office, by calling (866) 632-9992, or by writing a letter addressed to USDA. The letter must contain the complainant's name, address, telephone number, and a written description of the alleged discriminatory action in sufficient detail to inform the Assistant Secretary for Civil Rights (ASCR) about the nature and date of an alleged civil rights violation. The completed AD-3027 form or letter must be submitted to USDA by:

(1) Mail: U.S. Department of Agriculture, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue SW, Washington, DC 20250-9410; or

(2) Fax: (833) 256-1665 or (202) 690-7442; or

(3) Email: Program.Intake@usda.gov.

Accordingly, for the reasons set forth in the preamble, the Rural Utilities Service amends 7 CFR part 1719 as follows:

DOE published a final rule in the Federal Register on April 30, 2024, revising NEPA implementing procedures to add a categorical exclusion for certain energy storage systems and revise categorical exclusions for upgrading and rebuilding powerlines and for solar photovoltaic systems, as well as to make conforming changes to related sections of DOE's NEPA regulations. 89 FR 34074. These changes will help ensure that DOE conducts an appropriate and efficient environmental review of proposed projects that normally do not result in significant environmental impacts.

In FR Doc. 2024-09186 appearing on pg. 34093 in the Federal Register of Tuesday, April 30, 2024, the following correction is made:

On pg. 34093 in the first column, correct paragraph M, Congressional Notification, to read: “As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of this rule prior to its effective date. The report will state that the Office of Information and Regulatory Affairs has determined that the rule does not meet the criteria set forth in 5 U.S.C. 804(2).”

This document of the Department of Energy was signed on May 8, 2024, by Samuel T. Walsh, General Counsel, 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 .

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Bombardier, Inc., Model BD-700-1A10 and BD-700-1A11 airplanes. The NPRM published in the Federal Register on December 22, 2023 (88 FR 88541). The NPRM was prompted by AD CF-2023-25, dated April 13, 2023 (referred to after this as the MCAI), issued by Transport Canada, which is the aviation authority for Canada. The MCAI states time limited maintenance check (TLMC) item 52-11-00-201, “Passenger Door Mechanism Functional Test,” does not detect potential failure of the passenger door detent mechanism. Associated aircraft maintenance manual (AMM) task 52-11-00-720-801, “Passenger Door Mechanism Functional Test,” does not provide a procedure for inspecting the passenger door locking mechanism.

In the NPRM, the FAA proposed to require revising the maintenance or inspection program, as applicable, to require use of a certain AMM task during accomplishment of a specified maintenance check. The FAA is issuing this AD to address potential failures of the uninspected detents (external handle detent and torque tube detent) in combination with a failure of the tension pot spring assembly. The unsafe condition, if not addressed, could result in the main passenger door opening during unpressurized flight.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-2397.

The FAA received a comment from NetJets Inc. The following presents the comment received on the NPRM and the FAA's response to the comment.

NetJets Inc. asked that the AMM task revision levels identified in the NPRM be changed, as there have been recent improvements to the documents. NetJets Inc. added that credit for the revisions currently listed should also be included in the proposed AD. Bombardier noted that the referenced AMM revision levels were revised during the public comment period of the NPRM.

The FAA provides the following clarification denoting that the requested changes are unnecessary. This AD requires incorporating the information specified in the referenced AMM revisions identified in figure 1 to paragraph (g) of this AD. The language in paragraph (g) of this AD allows the incorporation of the specific information, regardless of the AMM revision level in use, provided the language is identical to the information provided in Task 52-11-00-720-801, specified in the applicable AMMs specified in figure 1 to paragraph (g) of this AD. The language in a later revision of the applicable AMMs specified in figure 1 to paragraph (g) of this AD may be incorporated if it is identical. Therefore, if operators incorporate later AMMs into the maintenance or inspection program, as applicable, with identical language they are in compliance with paragraph (g) of this AD. The FAA has confirmed that the revisions cited by the commenter are identical to the revisions specified in this AD.

If the language provided in a later AMM revision is not identical to the language provided in the task specified in the applicable AMMs specified in figure 1 to paragraph (g) of this AD, operators must submit a request for approval of an alternate method of compliance (AMOC) with supporting data that demonstrates an acceptable level of safety for a task that differs from Task 52-11-00-720-801. The FAA has revised paragraph (g) of this AD to clarify that it's the information in the applicable AMM that is mandated and not limited to the AMM revision specified in figure 1 of paragraph (g) of this AD.

Paragraph (i) of this AD has been added to clarify that no changes to actions required by paragraph (g) of this AD are allowed without an AMOC, which also reinforces the provisions of paragraph (h) of this AD.

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.

The FAA reviewed Task 52-11-00-720-801, “Functional Test of the Passenger Door Mechanism,” Subject 52-11-00, “Passenger Door,” Chapter 52, “Doors,” of the following AMMs. This task specifies new inspection instructions for the passenger door detent mechanisms.

• Bombardier Global Express AMM, Part Two, Publication No. BD-700 AMM, Revision 97, dated March 30, 2023. (For obtaining the task for Bombardier Global Express AMM, Part Two, Publication No. BD-700 AMM, use Document Identification No. GL 700 AMM.)

• Bombardier Global 5000 AMM, Part Two, Publication No. BD-700 AMM, Revision 78, dated March 30, 2023. (For obtaining the task for Bombardier Global 5000 AMM, Part Two, Publication No. BD-700 AMM, use Document Identification No. GL 5000 AMM.)

• Bombardier Global 5000 Featuring Global Vision Flight Deck AMM, Part Two, Publication No. GL 5000 GVFD AMM, Revision 45, dated March 30, 2023.

• Bombardier Global 5500 AMM, Part Two, Publication No. GL 5500 AMM, Revision 14, dated March 30, 2023.

• Bombardier Global 6000 AMM, Part Two, Publication No. GL 6000 AMM, Revision 46, dated March 30, 2023.

• Bombardier Global 6500 AMM, Part Two, Publication No. GL 6500 AMM, Revision 15, dated March 30, 2023.

• Bombardier Global Express XRS AMM, Part Two, Publication No. BD-700 XRS AMM, Revision 75, dated March 30, 2023. (For obtaining the task for Bombardier Global Express XRS AMM, Part Two, Publication No. BD-700 XRS AMM, use Document Identification No. GL XRS AMM.)

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 the ADDRESSES section.

The FAA estimates that this AD, affects 482 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA has determined that revising the maintenance or inspection program takes an average of 90 work-hours per operator, although the agency recognizes that this number may vary from operator to operator. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), the FAA has determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, the agency estimates the average total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).

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 invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under ADDRESSES . Include “FAA-2024-0771; Project Identifier AD-2023-01251-E” at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this final rule because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this final rule.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Alexander Thickstun, Aviation Safety Engineer, FAA, 2200 South 216th Street, Des Moines, WA 98198. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

AD 2024-06-15, Amendment 39-22720 (89 FR 33215, April 29, 2024), requires repetitive ultrasonic inspections (USIs) of the interstage high-pressure turbine (HPT) rotor seal for cracks and removal from service if necessary. As a mandatory terminating action to the repetitive USIs of the interstage HPT rotor seal, this AD requires replacement of the interstage HPT rotor seal.

As published, paragraphs (c), (g)(1), (g)(1)(i) and (ii), and (g)(2) in the regulatory text of AD 2024-06-15 are incorrect. These paragraphs refer to the service information as “GE GE90-100 Service Bulletin (SB) 72-A0908 R00, dated July 7, 2023” and “GE SB 72-A0908.” The correct service information is “GE GE90-100 Service Bulletin (SB) 72-0908 R00, dated July 7, 2023” and “GE SB 72-0908.”

The FAA reviewed GE GE90-100 Service Bulletin (SB) 72-0908 R00, dated July 7, 2023, which specifies procedures for performing a USI of the interstage HPT rotor seal. 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 .

This document corrects an error and correctly adds the AD as an amendment to 14 CFR 39.13. Although no other part of the preamble or regulatory information has been corrected, the FAA is publishing the entire rule in the Federal Register .

The effective date of this AD remains May 14, 2024.

Since this action only corrects a typographical error in the references to the service information, it has no adverse economic impact and imposes no additional burden on any person. Therefore, the FAA has determined that prior notice and public comment procedures are unnecessary.

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority, as it amends Class D and Class E airspace in Huntington, WV. An airspace evaluation determined that this update is necessary to support IFR operations in the area.

The FAA published a notice of proposed rulemaking for Docket No. FAA-2023-2360 in the Federal Register (88 FR 88854; December 26, 2023), to amend Class D airspace and E airspace extending upward from 700 feet above the surface for Tri-State/Milton J. Ferguson Field, Huntington, WV. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class D and Class E airspace designations are published in Paragraphs 5000 and 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11H, dated August 11, 2023, and effective September 15, 2023. FAA Order JO 7400.11H is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next update to FAA Order JO 7400.11.

FAA Order JO 7400.11H lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This action amends 14 CFR part 71 by amending Class D airspace by adding that airspace extending upward from the surface within 1 mile on each side of the Tri-State/Milton J. Ferguson Field 112° bearing extending from the 4-mile radius to 5.7 miles southeast of the airport and 292° bearing from the airport extending from the 4-mile radius to 5.8 miles northwest of the airport.

This action amends Class E airspace extending from 700 feet above the surface by increasing the radius to 8.3 miles (previously 8.2 miles) and adding that airspace within 2 miles on each side of the Tri-State/Milton J. Ferguson Field 112° bearing extending from the 8.3-mile radius to 10.2 miles southeast of the airport.

The Tri-State/Milton J. Ferguson Field Class D and Class E airspace is amended, in accordance with the 7400.2, by removing the city name from the descriptor header.

Subsequent to publication, the FAA found an error in the NPRM. The geographic coordinates of the airport were listed incorrectly, and the correct coordinates are (Lat 38°22′07″ N, long 82°33′37″ W). This action corrects this error.

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

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority, as it would amend Class E airspace in Winder, GA.

The FAA published a notice of proposed rulemaking for Docket No. FAA 2023-2467 in the Federal Register (89 FR 4856; January 25, 2024), proposing to amend Class E airspace extending upward from 700 feet above the surface for Barrow County Airport, Winder, GA. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in Paragraph 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document proposes to amend the current version of that order, FAA Order JO 7400.11H, Airspace Designations and Reporting Points, dated August 11, 2023, and effective September 15, 2023. These updates would be published subsequently in the next update to FAA Order JO 7400.11. FAA Order JO 7400.11H is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11H lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to 14 CFR part 71 amends Class E airspace extending upward from 700 feet above the surface for Barrow County Airport, Winder, GA, by updating the airport name (formerly Winder Airport) and geographic coordinates to coincide with the FAA's database. Amends the radius to 7.1 miles, which is consistent with the outcome of airspace evaluation instead of the current 6.5 miles. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations in the area.

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

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

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

The Department of State (Department) published a proposed rule (Public Notice 11999) on July 26, 2023, at 88 FR 48143, with 60 days provided for public comment. This final rule amends title 22 of the Code of Federal Regulations (CFR) by updating parts 50, 51, and 71 to publish regulations regarding when attorneys, interpreters, or other third parties may attend an appointment either domestically or overseas for a U.S. passport, Consular Report of Birth Abroad (CRBA), Certificate of Loss of Nationality (CLN) services, or for certain other U.S citizen services offered by ACS units at post.

Additionally, the final rule includes technical amendments to 22 CFR part 71 to clarify that appropriately designated Department employees, in addition to officers of the Foreign Service, may assist U.S. citizens seeking assistance at overseas posts. This change is consistent with federal law and regulations which were amended after 22 CFR part 71 was established in 1957.

The comment period for the proposed rule closed September 25, 2023, after a 60-day comment period. Three comments were received. One comment expressed unqualified support for the rule, noting that third-party assistance at the applicant's expense is crucial to disabled persons, the elderly, children, and many other people requesting U.S. citizens services. The other two comments also specifically expressed appreciation for the role that professional assistance of counsel may provide. The comments raised the following topics:

Two commenters expressed concern that the draft rule does not specify any qualifications that an attorney and/or other third party must have as a prerequisite to attending covered appointments. In particular, the commenters expressed concern about unauthorized practice of law.

The Department has previously considered whether to develop specific requirements that an individual must meet (and presumably establish to the satisfaction of the U.S. diplomatic or consular officer) to qualify as an “other third party” with a view, in part, to protect against unauthorized practice of law by, e.g., non-attorney immigration consultants. We have also considered whether to limit the definition of “attorney” to persons admitted to the bar of and licensed to practice in a U.S. state who are in good standing. However, in promulgating this rule, the Department is not seeking to regulate the person who a U.S. citizen chooses to accompany them to their appointment. While there is no Department-imposed requirement that an applicant/requester be represented by an attorney or other third party (regardless of qualifications) to apply for a U.S. passport, Consular Report of Birth Abroad, or any other covered service, the Department recognizes that some U.S. citizens may wish for a private attorney, interpreter and/or other third party of their choice to physically accompany them to the appointment. Particularly when an individual is seeking to document their citizenship and/or request other services offered by the American Citizens Services Unit at a U.S. embassy or consulate, the Department's goal is to facilitate as much as possible a U.S. citizen's choice of whom, if anyone, they wish to accompany them. This discretion to choose may be critical for persons of limited resources who may not be able to afford an attorney, and/or for the most vulnerable, including the elderly or disabled. Additionally, time and resource constraints as well as logistical difficulties in establishing a set of required qualifications to apply equally in all cases, which would require post and/or headquarters to verify information to ensure compliance, would unnecessarily complicate and limit the applicant/requester's ability to identify someone who may be eligible to accompany them. The Department will confirm that the applicant/requester has asked the third party to be present and will verify that the third party is cleared by Diplomatic Security using the applicable security procedures. The Department will include appropriate language on its public-facing website about the policy that will also inform the public that: (1) the Department does not require anyone to have an attorney or other third party to obtain and/or attend an appointment for a covered service; (2) the Department neither requires a third party to have, nor does the Department check to ensure that a third party has, any specific qualifications (beyond meeting security requirements); and, (3) that permitting a third party to attend an appointment in no way constitutes an endorsement of the third party and/or a representation that the third party has certain, or any, qualifications and/or ability to provide any assistance to the applicant/requester.

One comment urged the Department to consider expanding the proposed rule to allow attorneys to accompany their clients to immigrant visa and nonimmigrant visa interviews at U.S. embassies and consulates abroad. For decades the Department has deferred to consular sections in deciding whether attorneys or other third parties may be present at a visa interview; applying a uniform approach surrounding visa appointments does not account for the differing capacity, logistical, and security constraints, among other considerations that only the consular section can best assess. There are also different legal requirements and considerations pertaining to visa interviews that must be examined. For these reasons, we continue to defer to consular sections in deciding whether attorneys or other third parties may be present at a visa interview.

One commenter requested that the Department “more clearly reflect and clarify” the view that an applicant's/requester's attorney may be present throughout all stages of the process to request a Certificate of Loss of Nationality of the United States (CLN), up to and including the administration of the oath of renunciation, as articulated by Edward A. Betancourt in his 2008 letter to the commenter (attached to the comment).

The Department recognizes the importance of consistent application across all posts of a rule permitting an attorney, interpreter, and/or other third party to attend interviews related to a request for a CLN and to be present (at the request of the U.S. citizen) when a U.S. diplomatic or consular officer administers an oath of renunciation to the U.S. citizen under Immigration and Nationality Act section 349(a)(5) (8 U.S.C. 1481). The Department intends to take all appropriate steps to ensure compliance with the terms of this rule, and will update guidance to its employees in its Foreign Affairs Manual (FAM). To the extent that the commenter may be requesting a change to the proposed text of the rule to “more clearly reflect and clarify” the views articulated by Edward A. Betancourt in 2008, the Department believes that the text of 22 CFR 50.40(f) is clear and consistent with such views and declines to further amend the text.

Specifically, 22 CFR 50.40(f) provides that individuals may, at their own expense, have a private attorney, interpreter, and/or other third party of their own choice physically present during any in-person appointment, including interview appointments, at a U.S. embassy or consulate abroad related to a request for a Certificate of Loss of Nationality (CLN) [emphasis added]. The words “any in-person appointment” clearly encompass any in-person appointment, including one at which the oath of renunciation is administered.

Secondly, even though the text will generally permit an attorney's physical presence at any in-person appointment, consistent with the views expressed by Edward A. Betancourt in his 2008 letter, the text in 22 CFR 50.40(f)(4) clearly provides for diplomatic or consular officer discretion by stating the diplomatic or consular officer conducting the interview shall have the discretion to interview the individual alone, without an attorney and/or other third party present, when necessary to evaluate whether the individual has performed a potentially expatriating act independently, free from duress or coercion, and with intent to relinquish U.S. nationality.

While this text is somewhat broader than that which Edward A. Betancourt used in his 2008 letter ( i.e., Mr. Betancourt stated that the U.S. diplomatic or consular officer may exercise discretion in determining whether to permit an attorney to attend the oath of renunciation, whereas this rule covers any stage of the process as warranted by the circumstances), diplomatic or consular officer discretion supports the consular officer's responsibility to evaluate voluntariness and intent and helps ensure the integrity of the process at all stages, including at an initial interview.

Finally, although the text of 22 CFR 50.40(f) specifies that the requester must personally respond to the diplomatic or consular officer's questions, it does not preclude an attorney from addressing the consular officer should a legal question arise during the interview.

The Department published this rulemaking as a proposed rule and provided 60 days for public comment. The effective date of this final rule will be 30 days from date of publication.

The Department of State, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rulemaking will not have a significant economic impact on a substantial number of small entities. Only individuals, and no small entities, apply for passports or CRBAs or other services offered by the American Citizens Services (ACS) units at U.S. embassies and consulates overseas.

This rule has not been designated as “major” within the meaning of the Congressional Review Act, 5 U.S.C. 801 et seq.

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

The Department has reviewed this final rule to ensure its consistency with the regulatory philosophy and principles set forth in Executive Order 12866. Applicants appearing for passport and/or CRBA appointments, or seeking certain other services from an ACS unit overseas, occasionally request that a private attorney, interpreter, or other third party physically accompany them to the appointment; however, there is nothing in the Department's regulations that currently addresses this. The Department finds that the cost of this rulemaking to the public is expected to be minimal and provides a potential benefit to individuals who wish an attorney, interpreter, or other third party to accompany them to a passport, CRBA, or other appointment at an ACS unit overseas. At the same time, those who wish to appear without being accompanied by such individuals may do so; this rulemaking does not mandate any change in the public's behavior. Additionally, the Department does not anticipate that demand for passport, CRBA, or other services at ACS units overseas will change as a result of this rulemaking. In summary, the Department anticipates no substantive impact on the public from this final rule. The Department of State has considered this final rule in light of Executive Order 13563, dated January 18, 2011, and affirms that this regulation is consistent with the guidance therein.

This rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rulemaking does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. The regulations implementing E.O. 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this regulation.

The Department has determined that this rulemaking does not have tribal implications, does not impose substantial direct compliance costs on Indian tribal governments, and does not pre-empt tribal law. Accordingly, the requirements of E.O. 13175 do not apply to this rule.

This rulemaking does not impose any new reporting or recordkeeping requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.

Accordingly, for the reasons set forth in the preamble, 22 CFR parts 50, 51, and 71 are amended as follows:

The Coast Guard will enforce special local regulations in 33 CFR 100.701 for the 86th Annual Brunswick, Blessing of the Fleet event regulated area identified in paragraph (d) of Table 1 to § 100.701, Item No. 1, from 10 a.m. through 4 p.m. on May 11, 2024. This action is being taken to provide for the safety of life on navigable waterways during this event. Our regulation for recurring marine events within the Seventh Coast Guard District, § 100.701, Table 1 to § 100.701, paragraph (d), Item No.1, specifies the location of the regulated area for the Annual Brunswick Blessing of the Fleet event, which encompasses portions of the Brunswick River from the start of the East branch of the Brunswick River (East Brunswick River) to the Golden Isles Parkway Bridge. Under the provisions of 33 CFR 100.701, all persons and vessels are prohibited from entering the regulated area, except those persons and vessels participating in the event, unless they receive permission to do so from the Coast Guard Patrol Commander, or designated representative.

Under the provisions of 33 CFR 100.701, spectator vessels may safely transit outside the regulated area, but may not anchor, block, loiter in, impede the transit of festival participants or official patrol vessels or enter the regulated area without approval from the Coast Guard Patrol Commander or a designated representative. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation. In addition to this notice of enforcement in the Federal Register , the Coast Guard will provide notice of the regulated area via Local Notice to Mariners, Marine Safety Information Bulletins, Broadcast Notice to Mariners, and on-scene designated representatives.

On July 5, 2023, VA published a proposed rule in the Federal Register (88 FR 42891) that would establish the VSTAGP program in 38 CFR 80.1 through 80.17 pursuant to section 4304 of Public Law 116-315, the Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020, which was enacted on January 5, 2021.

VA provided a 30-day comment period, which ended on August 4, 2023. VA received four comments on the proposed rule. One of the four comments was strongly in favor of the rule. We thank the commenter for their support and do not make any changes based on that comment.

The second of the four comments suggested grant recipients must have access to separating Service members and recently separated Service members. More specifically, the commenter advocated in favor of a means by which grant recipients can identify the geographical areas where separating Service members have relocated. Additionally, the commenter suggested that the Department of Defense (DoD) and VA should collaborate to encourage those enrolled in the DoD Transition Assistance Program (TAP) to take advantage of opportunities provided by recipients of grants under VA's VSTAGP program.

As noted in the proposed rule, a Notice of Funding Opportunity (NOFO) will be posted at Grants.gov ( https://www.grants.gov ) in accordance with § 80.4 of the proposed rule. The NOFO will require applicants for grant funding to submit proposals addressing detailed outreach strategies appropriate and tailored to the specific service delivery area served by the applicant. To meet this requirement, VA will recommend in the NOFO that applicants conduct an environmental scan as a component or means of strategic planning to gather information about available supports and services within the proposed geographic area to be served. Furthermore, the NOFO will require applicants for grant funding to demonstrate how their proposed program will promote active outreach to, recruitment of, and engagement with former members of the U.S. Armed Forces who are separated, retired, or discharged, as well as their spouses. Applicants for grant funding must design, develop, and execute program promotion and awareness activities as a part of their outreach. The NOFO will require applicants for grant funding to submit proposals explaining how their program will reach out to potentially eligible individuals, and how they will collaborate with local entities that may serve former members of the U.S. Armed Forces as well as their spouses ( e.g., local military bases, VA Regional Offices, Veterans Service Organizations (VSO), faith-based organizations, social service agencies, community-based clinics, other job-training organizations), within their proposed geographic service delivery area to introduce the program to eligible participants. VA will encourage applicants to reach out to unique sub-groups of veterans and/or spouses who are likely experiencing inequitable access to jobs, job training programs, and/or other employment services in the proposed service area.

Thus, VA will not be providing information regarding the geographical areas where separating Service members have relocated. Grant applicants will have to design, develop, and execute program promotion and awareness activities as part of their proposal, to include strategies for reaching the relevant population within their proposed geographic service delivery area. VA has no specific plans to address opportunities provided by VSTAGP grant recipients as part of the TAP curriculum but, as noted above, intends that grant applicants will be responsible for developing strategies for promotion and awareness of such services. In any event, the comments relating to how applicants are supposed to identify certain areas or populations to serve, as well as the comments relating to encouraging TAP participants to take advantage of opportunities resulting from VSTAGP grants, are beyond the scope of the rulemaking. We do not make any changes based on these comments.

The third and fourth comments were supportive of the proposed rule. The comments advocated for widespread accessibility of applications and establishment of clear evaluation criteria. VA agrees with both comments. To address the comment regarding the accessibility of applications, as required in § 80.4 of the proposed rule, and in accordance with 2 CFR 200.204, VA will publish a NOFO at Grants.gov ( https://www.grants.gov ). The NOFO will provide clear application procedures including detailed guidance and resources to help applicants apply for funding and navigate the application process.

Additionally, to address the comment regarding clear application criteria the NOFO will include detailed scoring criteria as required in § 80.7, with clearly identified point values for each evaluation criterion. VA will establish procedures to assess the technical merit of applications to ensure an objective review of applications. The NOFO will contain information regarding the evaluative criteria that will be used by the review panel to evaluate submitted applications to help applicants understand the standards against which an application will be scored. VA will execute a merit review process for all responsive applications, with the objective of selecting recipients most likely to be successful in delivering results based on the program objectives. See 2 CFR 200.205. This will ensure that: (1) applicants for grant funding have the opportunity to submit proposals responsive to the solicitation, and (2) the application review process is clear and transparent to applicants. Applicants will be able to view all application requirements in the NOFO once published to Grants.gov ( https://www.grants.gov ). We do not make any changes based on these comments.

VA is clarifying the definition of the term “institution of higher education (IHE),” as that term was defined in § 80.2(f) of the proposed rule as one of the various listed entities that would be eligible to receive a VSTAGP grant. In the proposed rule, VA had defined the term “IHE” in a general manner that referred to certain “public or private educational institution[s].” In the final rule, VA is clarifying that private educational institutions must be nonprofit. Specifically, VA adopts the established definition of IHE specified in 20 U.S.C. 1001 (“General definition of institution of higher education”), which provides that, to qualify, an educational institution must be “a public or other nonprofit institution,” id. 1001(a)(4); see id. 1001(b)(1). Clarifying that “IHE” refers to only public or other nonprofit educational institutions ensures that the IHE definition is aligned with the definitions of other possible grant recipients, which include government entities, nonprofit organizations, and nonprofit faith-based organizations. VA believes that applying standards to IHEs that are similar to those applied to other possible grant recipients will promote greater consistency in carrying out the purposes of this grant program in different locations nationwide.

In the heading for new part 80 and in § 80.1, we are correcting the erroneous reference to “Veteran Transitional Assistance Grant Program” in the proposed rule to “Veteran and Spouse Transitional Assistance Grant Program”. In §§ 80.2(h)(3), 80.7(b), 80.9 and 80.14, we are changing the use of “may” to “will” or “must” to be more definitive in those provisions. In § 80.5, we are also clarifying that there will be a limit of one application per submitting organization serving the same participant population and in the same geographic service area. In the third sentence of § 80.7(b), we are correcting the erroneous reference to “each selection” in the proposed rule to “each criterion”.

We also note that the proposed rule included two provisions which we inadvertently did not address in the preamble. In § 80.2(k), we define the term “In-demand industry sector or occupation” because the term is likely to be used in NOFOs. In § 80.3(f), we explain that a grant must be in an amount that does not exceed 50 percent of the amount required by the grantee to provide the required services.

We are making technical changes in § 80.12(c) as proposed to remove material that is precatory, informational, or more appropriate for inclusion in the NOFO. We are thus removing the second sentence of the introductory text, paragraphs (1) and (2), and the second sentence of paragraph (3), and we are moving the first sentence of paragraph (c)(3), requiring grantees to participate in a VA-led evaluation, to the introductory text of paragraph (c).

VA adopts the proposed rule as final, with changes as discussed above.

Executive Order 12866 (Regulatory Planning and Review) directs agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 14094 (Modernizing Regulatory Review) supplements and reaffirms the principles, structures, and definitions governing contemporary regulatory review established in Executive Orders 12866 and 13563. The Office of Information and Regulatory Affairs has determined that this rulemaking is a significant regulatory action under Executive Order 12866, as amended by Executive Order 14094. The Regulatory Impact Analysis associated with this rulemaking can be found as a supporting document at www.regulations.gov .

The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601-612). Receiving or not receiving a grant is unlikely to have a significant economic impact on small entity applicants. Therefore, pursuant to 5 U.S.C. 605(b), the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603-604 do not apply.

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local and Tribal governments, in the aggregate or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This final rule will have no such effect on State, local and Tribal governments or on the private sector.

This final rule contains provisions constituting three new collections of information and revisions to several current/valid collections of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). Both the new and revised collections of information require approval by the Office of Management and Budget (OMB). Accordingly, under 44 U.S.C. 3507(d), VA has submitted a copy of this rulemaking action to OMB for review and approval. VA received no comments on the revised collections of information.

OMB has received the revised collections of information. OMB's receipt of the revised collections of information is not an approval to conduct or sponsor an information collection under the Paperwork Reduction Act of 1995. In accordance with 5 CFR 1320, the revised collections of information associated with this rulemaking are not approved by OMB at this time. OMB's approval of the revised collections of information will occur within 30 days after the final rulemaking publishes. If OMB does not approve the new collections of information as requested, VA will immediately remove the provision containing the new collections of information or take such other action as is directed by OMB.

This final rule also includes a provision constituting three new collections of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). The new collections of information require approval by the Office of Management and Budget (OMB) and the assignment of a new OMB Control Number. Accordingly, under 44 U.S.C. 3507(d), VA has submitted a copy of this rulemaking to OMB for review and approval. VA received no comments on the new collections of information.

OMB Control Numbers 2900-0928, 2900-0929, and 2900-0930 have been assigned to the new collections of information associated with this final rule. Assignment of these new OMB control numbers is not an approval to conduct or sponsor an information collection under the Paperwork Reduction Act of 1995. In accordance with 5 CFR 1320, the new collections of information associated with this rulemaking are not approved by OMB at this time. OMB's approval of the new collections of information will occur within 30 days after the final rulemaking publishes. If OMB does not approve the new collections of information as requested, VA will immediately remove the provision containing new collections of information or take such other action as is directed by OMB.

The collections of information contained in 38 CFR 80.5, 80.12 and 80.16 are described immediately following this paragraph.

Title: SF-424 Application for Federal Assistance.

OMB Control No: 4040-0004.

• Summary of collection of information: The new collection of information in proposed 38 CFR 80.5 would require VSTAGP grant applicants to submit the SF-424 as a minimum requirement to qualify for a VSTAGP grant.

• Description of the need for information and proposed use of information: The collection of information would be necessary to determine applicant eligibility for a VSTAGP grant. VA would use this information to score completed grant applications.

• Description of likely respondents: Eligible recipients, as defined in proposed § 80.2, that are interested in applying for a VSTAGP grant.

• Estimated number of respondents: 200 per year.

• Estimated frequency of responses: Annually.

• Estimated average burden per response: 1 hour.

• Estimated total annual reporting and recordkeeping burden: 1 hour.

• Estimated annual cost to respondents for the hour burdens for collections of information: According to the U.S. Bureau of Labor Statistics Mean Hourly Earnings, the cost to each respondent would be $28.01, making the total cost for respondents an estimated $5,602.00 (200 respondents × 1 burden hour × $28.01 per hour). (Source: May 2021 BLS National Occupational Employment and Wage Estimates, Code: 00-0000, All Occupations: https://www.bls.gov/oes/current/oes_nat.htm#00-0000 ).

• Estimated cost to the Federal Government: There is no projected incremental increase in the cost burden to the Federal Government with the requirement of the SF-424, Application for Federal Assistance. OTED currently has existing personnel, systems, and processes (or other resources) in place to receive and review their grant applications. Any additional cost for agency system development, maintenance, and enhancements should not be attributed to the use of SF-424, and therefore its use is not expected to alter annualized Federal costs.

Title: SF-424A Budget Information—Non-Construction Programs.

OMB Control No: 4040-0006.

• Summary of collection of information: The new collection of information in proposed 38 CFR 80.5 would require VSTAGP grant applicants to submit the SF-424A as a minimum requirement to qualify for a VSTAGP grant.

• Description of the need for information and proposed use of information: The collection of information would be necessary to determine applicant eligibility for a VSTAGP grant, to document proposed costs, and to determine allowability of proposed costs. VA would use this information to score completed grant applications and for general management of VSTAGP awards.

• Description of likely respondents: Eligible recipients, as defined in proposed § 80.2, that are interested in applying for a VSTAGP grant.

• Estimated number of respondents: 200 per year.

• Estimated frequency of responses: Annually.

• Estimated average burden per response: 3 hours.

• Estimated total annual reporting and recordkeeping burden: 3 hours.

• Estimated annual cost to respondents for the hour burdens for collections of information: According to the U.S. Bureau of Labor Statistics Mean Hourly Earnings, the cost to each respondent would be $84.03, making the total cost for respondents an estimated $16,806.00 (200 respondents × 3 burden hours × $28.01 per hour). (Source: May 2021 BLS National Occupational Employment and Wage Estimates, Code: 00-0000, All Occupations: https://www.bls.gov/oes/current/oes_nat.htm#00-0000 )

• Estimated cost to the Federal Government: There is no projected incremental increase in the cost burden to the Federal Government with the requirement of the SF-424A, Budget Information—Non-Construction Programs. OTED currently has existing personnel, systems, and processes (or other resources) in place to receive and review their grant applications. Any additional cost for agency system development, maintenance, and enhancements should not be attributed to the use of the SF-424A, and therefore its use is not expected to alter annualized Federal costs.

Title: 4040-0010 Project/Performance Site Location(s).

OMB Control No: 4040-0010.

• Summary of collection of information: The new collection of information in proposed 38 CFR 80.5 would require VSTAGP grantees to submit the primary location and any other locations where project activity would occur.

• Description of the need for information and proposed use of information: The collection of information would be necessary to ensure adequate geographic coverage.

• Description of likely respondents: Eligible recipients, as defined in proposed § 80.2, that are interested in applying for a VSTAGP grant.

• Estimated number of respondents: 200 per year.

• Estimated frequency of responses: Annually.

• Estimated average burden per response: 5 minutes.

• Estimated total annual reporting and recordkeeping burden: 5 minutes.

• Estimated annual cost to respondents for the hour burdens for collections of information: According to the U.S. Bureau of Labor Statistics Mean Hourly Earnings, the cost to each respondent would be $2.33, making the total cost for respondents an estimated $466.83 (200 respondents × ((5 burden minutes × $28.01 per hour)/60 minutes)). (Source: May 2021 BLS National Occupational Employment and Wage Estimates, Code: 00-0000, All Occupations: https://www.bls.gov/oes/current/oes_nat.htm#00-0000 )

• Estimated cost to the Federal Government: There is no projected incremental increase in the cost burden to the Federal Government with the requirement of the 4040-0010 Project/Performance Site Location(s). OTED currently has existing personnel, systems, and processes (or other resources) in place to receive and review their grant applications. Any additional cost for agency system development, maintenance, and enhancements should not be attributed to the use of form 4040-0010 Project/Performance Site Location(s), and therefore its use is not expected to alter annualized Federal costs.

Title: 4040-0013 Certification Regarding Lobbying.

OMB Control No: 4040-0013.

• Summary of collection of information: The new collection of information in proposed 38 CFR 80.5 would require VSTAGP applicants to submit the Certification Regarding Lobbying form if requesting an award greater than $100,000.

• Description of the need for information and proposed use of information: The collection of information would be necessary for applicants to attest to the certifications regarding lobbying. This collection may not be required of every applicant.

• Description of likely respondents: Eligible recipients, as defined in proposed § 80.2, that are interested in applying for a VSTAGP grant.

• Estimated number of respondents: 198 per year.

• Estimated frequency of responses: Annually.

• Estimated average burden per response: 15 minutes.

• Estimated total annual reporting and recordkeeping burden: 15 minutes.

• Estimated annual cost to respondents for the hour burdens for collections of information: According to the U.S. Bureau of Labor Statistics Mean Hourly Earnings, the cost to each respondent would be $7.00, making the total cost for respondents an estimated $1,386.49 (198 respondents × ((15 burden minutes × $28.01 per hour)/60 minutes)). (Source: May 2021 BLS National Occupational Employment and Wage Estimates, Code: 00-0000, All Occupations: https://www.bls.gov/oes/current/oes_nat.htm#00-0000 )

• Estimated cost to the Federal Government: There is no projected incremental increase in the cost burden to the Federal Government with the requirement of the 4040-0013 Certification Regarding Lobbying. OTED currently has existing personnel, systems, and processes (or other resources) in place to receive and review grant applications. Any additional cost for agency system development, maintenance, and enhancements should not be attributed to the use of 4040-0013 Certification Regarding Lobbying, and therefore its use is not expected to alter annualized Federal costs.

Title: Quarterly Performance Reports (IT instrument).

OMB Control No: 2900-0928.

• Summary of collection of information: The new collection of information in proposed 38 CFR 80.12 would require VSTAGP grantees to submit quarterly performance reports.

• Description of the need for information and proposed use of information: The collection of information would be necessary to monitor grantee performance and document the success of the program.

• Description of likely respondents: Grantees.

• Estimated number of respondents: 10 per year.

• Estimated frequency of responses: Quarterly.

• Estimated average burden per response: 1 hour per quarter.

• Estimated total annual reporting and recordkeeping burden: 4 hours.

• Estimated annual cost to respondents for the hour burdens for collections of information: According to the U.S. Bureau of Labor Statistics Mean Hourly Earnings, the cost to each respondent would be $112.04, making the total cost for respondents an estimated $1,120.40 (10 respondents × 4 burden hours × $28.01 per hour). (Source: May 2021 BLS National Occupational Employment and Wage Estimates, Code: 00-0000, All Occupations: https://www.bls.gov/oes/current/oes_nat.htm#00-0000 )

• Estimated cost to the Federal Government: There is no projected incremental increase in the cost burden to the Federal Government with the requirement of the Quarterly Performance Reports (IT instrument). OTED currently has existing personnel, systems, and processes (or other resources) in place to receive and review grant applications. Any additional cost for agency system development, maintenance, and enhancements should not be attributed to the use of Quarterly Performance Reports (IT instrument), and therefore its use is not expected to alter annualized Federal costs.

Title: SF-425 Federal Financial Report.

OMB Control No: 4040-0014.

• Summary of collection of information: The new collection of information in proposed 38 CFR 80.12 would require VSTAGP grantees to submit quarterly financial reports to assess financial expenditure compliance under this grant program.

• Description of the need for information and proposed use of information: The collection of information would be necessary to monitor grantee compliance with financial requirements.

• Description of likely respondents: Grantees.

• Estimated number of respondents: 10 per year.

• Estimated frequency of responses: Quarterly.

• Estimated average burden per response: 1 hour per quarter.

• Estimated total annual reporting and recordkeeping burden: 4 hours.

• Estimated annual cost to respondents for the hour burdens for collections of information: According to the U.S. Bureau of Labor Statistics Mean Hourly Earnings, the cost to each respondent would be $112.04, making the total cost for respondents an estimated $1,120.40 (10 respondents × 4 burden hours × $28.01 per hour). (Source: May 2021 BLS National Occupational Employment and Wage Estimates, Code: 00-0000, All Occupations: https://www.bls.gov/oes/current/oes_nat.htm#00-0000 )

• Estimated cost to the Federal Government: There is no projected incremental increase in the cost burden to the Federal Government with the requirement of the SF-425 Federal Financial Report. OTED currently has existing personnel, systems, and processes (or other resources) in place to receive and review grant applications. Any additional cost for agency system development, maintenance, and enhancements should not be attributed to the use of SF-425 Federal Financial Report, and therefore its use is not expected to alter annualized Federal costs.

Title: Additional Reports (IT instrument).

OMB Control No: 2900-0929.

• Summary of collection of information: The new collection of information in proposed 38 CFR 80.12 would require VSTAGP grantees to provide additional performance reports, as needed, to assess the provisions of services under this grant program.

• Description of the need for information and proposed use of information: The collection of information would be necessary to assess project accountability and effectiveness.

• Description of likely respondents: Grantees.

• Estimated number of respondents: 10.

• Estimated frequency of responses: Once.

• Estimated average burden per response: 1 hour.

• Estimated total annual reporting and recordkeeping burden: 1 hour.

• Estimated annual cost to respondents for the hour burdens for collections of information: According to the U.S. Bureau of Labor Statistics Mean Hourly Earnings, the cost to each respondent would be $28.01, making the total cost for respondents an estimated $280.10 (10 respondents × 1 burden hour × $28.01 per hour). (Source: May 2021 BLS National Occupational Employment and Wage Estimates, Code: 00-0000, All Occupations: https://www.bls.gov/oes/current/oes_nat.htm#00-0000 )

• Estimated cost to the Federal Government: There is no projected incremental increase in the cost burden to the Federal Government with the requirement of the Additional Reports (IT instrument). OTED currently has existing personnel, systems, and processes (or other resources) in place to receive and review grant applications. Any additional cost for agency system development, maintenance, and enhancements should not be attributed to the use of Additional Reports (IT instrument), and therefore its use is not expected to alter annualized Federal costs.

Title: Recordkeeping.

OMB Control No: 2900-0930.

• Summary of collection of information: The new collection of information in proposed 38 CFR 80.16 would require VSTAGP records to be maintained. VA officials are entitled access to any documents, papers, or other records which are pertinent to the VSTAGP award for audits, examinations, excerpts, and transcripts. This also includes timely and reasonable access to VSTAGP personnel for interviews and discussions related to such documents.

• Description of the need for information and proposed use of information: The collection of information would be necessary to access project records.

• Description of likely respondents: Grantees.

• Estimated number of respondents: 10.

• Estimated frequency of responses: Annually.

• Estimated average burden per response: 1 hour.

• Estimated total annual reporting and recordkeeping burden: 1 hour.

• Estimated annual cost to respondents for the hour burdens for collections of information: According to the U.S. Bureau of Labor Statistics Mean Hourly Earnings, the cost to each respondent would be $28.01, making the total cost for respondents an estimated $280.10 (10 respondents × 1 burden hour × $28.01 per hour). (Source: May 2021 BLS National Occupational Employment and Wage Estimates, Code: 00-0000, All Occupations: https://www.bls.gov/oes/current/oes_nat.htm#00-0000 )

• Estimated cost to the Federal Government: There is no projected incremental increase in the cost burden to the Federal Government as a result of this requirement. OTED currently has existing personnel, systems, and processes (or other resources) in place to receive and review their grant applications. Any additional cost for agency system development, maintenance, and enhancements should not be attributed to Recordkeeping, and therefore its use is not expected to alter annualized Federal costs.

The Assistance Listing number and title for the program affected by this document is 64.058, Veteran and Spouse Transitional Assistance Grant Program.

Pursuant to Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (known as the Congressional Review Act) (5 U.S.C. 801 et seq. ), the Office of Information and Regulatory Affairs designated this rule as not satisfying the criteria under 5 U.S.C. 804(2).

Denis McDonough, Secretary of Veterans Affairs, approved and signed this document on April 30, 2024, and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs.

I. Background

On May 31, 2023, the Commonwealth of Kentucky submitted changes to the Jefferson County portion of the Kentucky SIP for EPA approval. 1 2 In this rulemaking, EPA is approving changes to Regulation 1.02, Definitions.

Through a notice of proposed rulemaking (NPRM) published on March 7, 2024 (89 FR 16496), EPA proposed to approve changes to the District's Regulation 1.02, Definitions, which included a list of “trivial activities” in a new appendix, updated the incorporation by reference date of the Federal air quality regulation that excludes certain organic compounds from the definition of “volatile organic compounds (VOC),” and made minor grammatical changes. In this rulemaking, EPA is finalizing its approval of the District's May 31, 2023, request to incorporate Version 16 of Regulation 1.02 into the SIP, replacing Version 15. EPA is not approving the change to the definition of “Acute noncancer effect” because that definition is not approved into the SIP, and EPA is not incorporating that definition into the SIP from Version 16. EPA's rationale for approving the changes is described in the March 7, 2024, NPRM. Comments on the March 7, 2024, NPRM were due on or before April 8, 2024. EPA received one set of comments, which is discussed in the next section of this rulemaking notice.

EPA received one set of comments on the March 7, 2024, NPRM. This set of comments, submitted by a member of the general public, consists of several statements associated with website hyperlinks. It is unclear how these comments are relevant to the proposal, how the hyperlinked materials support the comments, and how, or whether, the commenter would like EPA to change the proposal. Furthermore, as noted in the March 7, 2024, NPRM, EPA generally will not consider comment contents located outside of the primary submission ( i.e., on the web, cloud, or other file-sharing system) such as the hyperlinked materials. For these reasons, the comments require no further response, and we are finalizing the action as proposed.

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, and as discussed in Section I this preamble, EPA is finalizing the incorporation by reference of Jefferson County Regulation 1.02, Version 16, Definitions, locally effective on March 15, 2023, except for the definition of “Acute noncancer effect.” EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 4 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the State implementation plan, have been incorporated by reference by EPA into that plan, are fully Federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 3

EPA is approving the aforementioned changes to Regulation 1.02, Definitions, submitted on May 31, 2023, except for the change to the definition of “Acute noncancer effect,” because that definition is not approved into the SIP. EPA has determined that the requested changes in Kentucky's May 31, 2023, SIP revision will not interfere with any applicable requirement concerning attainment, or any other applicable requirement of the CAA.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the CAA. Accordingly, 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 CAA.

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian Tribe has demonstrated that a Tribe has jurisdiction. In those areas of Indian country, the 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. EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 12, 2024. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

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

On September 28, 2022, 1 TDEC submitted a SIP revision revising monitoring standards in Chapter 1200-3-10, Required Sampling, Recording, and Reporting, of the Tennessee SIP by adding exemptions to opacity monitoring requirements at paragraph (1)(b)1. of Tennessee Rule 1200-3-10-.02, Monitoring of Source Emissions, Recording, and Reporting of the Same are Required. The SIP revision to the State's monitoring requirements: (1) removes a cross-reference at Rule 1200-3-10-.02(1)(b)1.(i) to Tennessee Rule 1200-3-16-.02 for the definition of fossil fuel-fired steam generators; (2) adds a new definition of “fossil fuel-fired steam generator” to Rule 1200-3-10-.02(1)(b)1.(i); and (3) adds new subparagraphs III and IV to paragraph (1)(b)1.(i)(I) to provide a third alternative for fossil fuel-fired steam generators to be exempted from the continuous opacity monitoring system requirement and to adopt and incorporate the relevant standards of 40 CFR part 63, subpart UUUUU by reference.

Through a notice of proposed rulemaking (NPRM), published on March 1, 2024 (89 FR 15098), EPA proposed to approve Tennessee's September 28, 2022, SIP revision. In that NPRM, EPA proposed to determine that the SIP revision to allow certain sources to use alternative monitoring procedures, based on an approach to opacity monitoring in EPA's New Source Performance Standards for steam generating units, at 40 CFR part 60, subparts D and Da, and National Emission Standards for Hazardous Air Pollutants for steam generating units, at 40 CFR part 63, subpart UUUUU, is consistent with Section 3.9 of Appendix P of 40 CFR part 51 and satisfies CAA section 110(l). Additional details on the revision, as well as EPA's rationale for approval, are explained in the March 1, 2024, NPRM. Comments on the March 1, 2024, NPRM were due on or before April 1, 2024. EPA received one set of comments, which is discussed in the next section of this rulemaking notice.

EPA received one set of comments on the March 1, 2024, NPRM. This set of comments, submitted by a member of the general public, consists of several statements associated with website hyperlinks. It is unclear how these comments are relevant to the proposal, how the hyperlinked materials support the comments, and how, or whether, the commenter would like EPA to change the proposal. Furthermore, as noted in the March 1, 2024, NPRM, EPA generally will not consider comment contents located outside of the primary submission ( i.e., on the web, cloud, or other file-sharing system) such as the hyperlinked materials. For these reasons, the comments require no further response and we are finalizing the action as proposed.

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, and as discussed in Sections I of this preamble, EPA is finalizing the incorporation by reference of TDEC Regulation 1200-3-10-.02, Monitoring of Source Emissions, Recording, and Reporting of the Same are Required, state-effective August 31, 2022, 2 which adds exemptions to opacity monitoring requirements to the State's SIP-approved monitoring standards. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 4 Office (please contact the person identified in the “For Further Information Contact” section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 3

EPA is finalizing approval of Tennessee's September 28, 2022, SIP revision to air quality rules in the Tennessee SIP. Specifically, EPA is approving a revision to TDEC Regulation 1200-3-10-.02, Monitoring of Source Emissions, Recording, and Reporting of the Same are Required, into the Tennessee SIP. This revision adds exemptions to opacity monitoring requirements to the State's SIP-approved monitoring standards to allow for alternative monitoring procedures for certain sources, consistent with the CAA.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the CAA. Accordingly, 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 CAA.

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian Tribe has demonstrated that a Tribe has jurisdiction. In those areas of Indian country, the 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. EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 12, 2024. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

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

On November 8, 2019, the Centers for Medicare & Medicaid Services (CMS) published a final rule titled, “Medicare Program; End-Stage Renal Disease Prospective Payment System, Payment for Renal Dialysis Services Furnished to Individuals with Acute Kidney Injury, End-Stage Renal Disease Quality Incentive Program, Durable Medical Equipment, Prosthetics, Orthotics and Supplies (DMEPOS) Fee Schedule Amounts, DMEPOS Competitive Bidding Program (CBP) Amendments, Standard Elements for a DMEPOS Order, and Master List of DMEPOS Items Potentially Subject to a Face-to-Face Encounter and Written Order Prior to Delivery and/or Prior Authorization Requirements” (the November 2019 final rule) (84 FR 60648). The rule became effective January 1, 2020, harmonizing the lists of DMEPOS items created by former rules and establishing one “Master List of DMEPOS Items Potentially Subject to Face-to-Face Encounter and Written Orders Prior to Delivery and/or Prior Authorization Requirements” (the “Master List”).

The Master List serves as a library of items, that have been identified as potential vulnerabilities to the Trust Fund based on criteria outlined in 42 CFR 414.234(b), from which items may be selected to be placed on either the Required Face-to-Face Encounter and Written Orders Prior to Delivery List (the “F2F/WOPD List”) and/or Required Prior Authorization List under the authority provided under sections 1834(a)(1)(E)(iv), 1834(a)(11)(B), and 1834(a)(15) of the Act. Only those items that are selected and announced via Federal Register notice are subject to such regulatory conditions of payment. The November 2019 final rule provided that the Federal Register notice would be for a period of no less than 60 days. It also clarified that certain items (that is, power mobility devices) require a face-to-face encounter per statute and would remain on both the Master List and the F2F/WOPD List, indefinitely.

The November 2019 final rule information related to face-to-face encounters, written orders prior to delivery, and 5-element order/prescription for specified DMEPOS items was codified in 42 CFR 410.38. The information in the November 2019 final rule related to the creation and maintenance of the Master List is codified at 42 CFR 414.234. The November 2019 final rule also includes information related to the prior authorization process, as initially outlined in the December 30, 2015 final rule titled “Medicare Program; Prior Authorization Process for Certain Durable Medical Equipment, Prosthetics, and Supplies” (80 FR 81674).

The Master List was last updated in 2022 and currently includes 439 items.

In 2022 and 2023, CMS published the first and second iterations of the Required Face-to-Face Encounter and Written Orders Prior to Delivery List, respectively. There are currently 63 items on the list, including 46 power mobility devices that were included per statute.

The Required Prior Authorization List was last updated in 2022 and currently includes 62 items. All the lists discussed in this notice are available on the cms.gov website.

This document serves to update three separate lists. First, it provides an update to the Master List. Next, this document updates the items included on the Required Face-to-Face and Written Order Prior to Delivery List. Finally, this document updates items included on the Required Prior Authorization List.

The Master List includes items that appear on the DMEPOS Fee Schedule and meet one of the following criteria, as stated in 42 CFR 414.234(b)(1):

• Have an average purchase fee of $500 or greater that is adjusted annually for inflation, or an average monthly rental fee schedule of $50 or greater that is adjusted annually for inflation, or items identified as accounting for at least 1.5 percent of Medicare expenditures for all DMEPOS items over a recent 12-month period, that are also—

++ Identified in a Government Accountability Office (GAO) or Department of Health and Human Services Office of Inspector General (OIG) report that is national in scope and published in 2015 or later as having a high rate of fraud or unnecessary utilization; or

++ Listed in the 2018 or subsequent year Comprehensive Error Rate Testing (CERT) Medicare Fee-for-Service Supplemental Improper Payment Data report as having a high improper payment rate.

• Any items with at least 1,000 claims and $1 million in payments during a recent 12-month period that are determined to have aberrant billing patterns and lack explanatory contributing factors (for example, new technology or coverage policies that may require time for providers and suppliers to be educated on billing policies). Items with aberrant billing patterns would be identified as those items with payments during a 12-month timeframe that exceed payments made during the preceding 12-months by the greater of—

++ Double the percent change of all DMEPOS claim payments for items that meet the previous claim and payment criteria, from the preceding 12-month period; or

++ Exceeding a 30 percent increase in payments for the items from the preceding 12-month period.

• Any items statutorily requiring a face-to-face encounter, a written order prior to delivery, or prior authorization.

In the regulation at § 414.234 (b)(2) and the November 2019 final rule noted previously, the maintenance process of the Master List is described as follows:

• The Master List will be updated annually, and more frequently as needed (for example, to address emerging billing trends), and to reflect the thresholds specified in the regulations.

• Items on the DMEPOS Fee Schedule that meet the payment threshold criteria set forth in § 414.234(b)(1) are added to the list when the item is also listed in the CERT Medicare Fee-for-Service Supplemental Improper Payment Data report published after 2020, or in an OIG or GAO report published after 2020, and items not meeting the cost thresholds (originally set at $500 for purchases and $50 for rentals and adjusted for inflation) may still be added based on findings of aberrant billing patterns.

• Items are removed from the Master List 10 years after the date the item was added, unless the item was identified in an OIG report, GAO report, or having been identified in the CERT Medicare Fee for Service Supplemental Improper Payment Data report as having a high improper payment rate, within the 5-year period preceding the anticipated date of expiration.

• Items are removed from the list sooner than 10 years if the purchase amount drops below the payment threshold.

• Items already on the Master List that are identified on a subsequent OIG, GAO, or CERT report will remain on the list for 10 years from the publication date of the new report.

• Items on the Master List are updated when the HCPCS codes representing an item have been discontinued and cross walked to an equivalent item.

• We will notify the public of any additions and deletions from the Master List by posting a notification in the Federal Register and on the CMS Prior Authorization website at http://go.cms.gov/DMEPOSPA.

This document provides the annual update to the Master List of DMEPOS Items Potentially Subjected to a Face-to-Face Encounter and Written Order Prior to Delivery and/or Prior Authorization Requirements stated in the November 2019 final rule (84 FR 60648). As noted previously, we adjust the “payment threshold” each year for inflation. Specifically, in accordance with 42 CFR 414.234(b)(1)(i) the $500 average purchase fee threshold and the $50 average monthly rental fee threshold is adjusted using the consumer price index for all urban consumers (CPI-U), reduced by the 10-year moving average of changes in annual economy-wide private nonfarm business multifactor productivity (MFP) as projected by the Secretary for the 10-year period ending with the applicable FY, year, cost reporting period, or other annual period.

The DMEPOS fee schedule amounts are also updated every year to account for inflation. For CY2021, 1 the percentage increase in the consumer price index for all urban consumers (United States city average, CPI-U) for the 12-month period ending June 30, 2020 was 0.6 percent. The change in the economy wide productivity equal to the 10-year moving average of changes in annual economy wide private non-farm business multi-factor productivity (referred to as the productivity adjustment) was 0.4 percent. Beginning with the November 18, 2021 release of productivity data, the Bureau of Labor Statistics replaced the term multifactor productivity with total factor productivity stating that this was a change in terminology only and will not affect the data or methodology. Thus, for CY 2021, we applied an update factor of 0.2 percent (reduce the 0.6 percentage increase in the CPI-U by the productivity adjustment of 0.4 percentage point). Applying the 0.2 percent update factor to the CY 2020 average price threshold of $500 results in a CY 2021 adjusted payment threshold of $501 ($500 × 1.002) and an updated rental payment threshold of $50.10 ($50 × 1.002), which we round to $50.

The DME Fee Schedule was updated for CY 2022  2 and CY 2023, 3 however due to the Covid-19 Public Health Emergency (PHE), the Master List was not updated.

For CY 2022, the CPI-U increase was 5.4 percent and the productivity adjustment was 0.3 percentage points. Thus, for CY 2022, we applied an update factor of 5.1 percent (5.4 percent reduced by 0.3 percentage points).

For CY 2022, the adjusted purchase price threshold was $527 and the adjusted monthly rental fee threshold was $53. We calculated this by applying the 5.1 percent update factor to the CY 2021 average price threshold of $501, resulting in a CY 2022 adjusted payment threshold of $526.55 ($501 × 1.051), and to the CY 2021 average monthly rental fee of $50, resulting in an adjusted payment threshold of $52.55 ($50 × 1.051). Rounded to the nearest whole dollars results in thresholds of $527 and $53.

For CY 2023, the CPI-U increase was 9.1 percent and the productivity adjustment was 0.4 percentage points. Thus, for CY 2023, we applied an update factor of 8.7 percent (9.1 percent reduced by 0.4 percentage points).

For CY 2023 the adjusted purchase price threshold was $573 and the adjusted monthly rental fee threshold of $58. We calculated this by applying the 8.7 percent update factor to the CY 2022 average price threshold of $527, resulting in a CY 2023 adjusted payment threshold of $572.85 ($527 × 1.087), and to the CY 2022 average monthly rental fee of $53, resulting in an adjusted payment threshold of $57.61 ($53 × 1.087). Rounded to the nearest whole dollar, these figures are $573 and $58.

For CY 2024, the CPI-U increase was 3.0 percent and the productivity adjustment was 0.4 percentage points. Thus, for CY 2024, we applied an update factor of 2.6 percent (3.0 percent reduced by 0.4 percentage points).

For CY 2024, the adjusted purchase price threshold is $588 and the adjusted monthly rental fee threshold is $60. We calculated this by applying the 2.6 percent update factor to the CY 2023 average price threshold of $573, resulting in a CY 2024 adjusted payment threshold of $587.89 ($573 × 1.026), and to the CY 2023 average monthly rental fee of $58, resulting in an adjusted payment threshold of $59.51 ($58 × 1.026). Rounding to the nearest whole dollar, these figures are $588 and $60.

We are adding a total of 76 HCPCS codes (see Table 1) meeting the criteria outlined previously to the Master List. Of these 76 HCPCS codes, 56 are added because these items meet the updated payment threshold and are listed in an OIG or GAO report of a national scope or a CERT Medicare Fee-for-Service Supplemental Improper Payment Data report, or both; and 20 are being added for aberrant billing patterns. The codes added due to aberrant billing patterns represent items for which data show suppliers submitted at least 1,000 claims and received at least $1 million in payments during the two 12-month periods from July 2021 to June 2022 and July 2022 to June 2023. There was more than a 30 percent increase in payments for each item from the preceding 12-month period. CMS did not identify explanatory contributing factors for the aberrant billing.

Items are removed from the Master List 10 years after the date the item was added, unless the item was identified in an OIG report, GAO report, or has been identified in the CERT Medicare Fee-for-Service Supplemental Improper Payment Data report as having a high improper payment rate, within the 5-year period preceding the anticipated date of expiration. Additionally, items are removed from the list sooner than 10-year timeframe if the purchase or monthly rental amount drops below the payment threshold. There are three (See Table 2) HCPCS codes being removed from the Master List for the CY 2024 update, as they no longer meet the criteria for inclusion.

The full updated Master List is available in the Downloads & Links section of the following CMS website: http://go.cms.gov/DMEPOSPA

As previously stated, PMDs are included on the F2F/WOPD List per statutory obligation. For the other DMEPOS items, we consider factors such as operational limitations, item utilization, cost-benefit analysis (for example, comparing the cost of review versus the anticipated amount of improper payment identified), emerging trends (for example, billing patterns, medical review findings), vulnerabilities identified in official agency reports, or other analysis.

When selecting these items, we balance our program integrity goals with the needs of beneficiaries to ensure the appropriate application and oversight of the face-to-face encounter requirements. In consideration of access issues, we note that the regulation 42 CFR 410.38 allows for use of telehealth, as defined in 42 CFR 410.78 and 414.65, when appropriate to meet our coverage requirements for beneficiaries.

We believe transparency and education will aid in compliance with these payment requirements and continued access. As such, we will make information widely available to the public at appropriate literacy levels regarding face-to-face encounter requirements, and necessary documentation for items on the F2F/WOPD List.

Consistent with § 410.38(d), the face-to-face encounter must be documented in the pertinent portion of the medical record (for example, history, physical examination, diagnostic tests, summary of findings, progress notes, treatment plans or other sources of information that may be appropriate). The supporting documentation must include subjective and objective beneficiary specific information used for diagnosing, treating, or managing a clinical condition for which the DMEPOS item(s) is ordered. Upon request by CMS or its review contractors, a supplier must submit additional documentation to support and substantiate the medical necessity for the DMEPOS item.

Prior to publication of this Federal Register notice, 63 items have been included on the F2F/WOPD List. We have not been notified of any issues related to beneficiary access, and billing trends have been consistent with anticipated volumes.

Based on our regulatory authority at 42 CFR 410.38, this Federal Register notice is adding the following 13 additional HCPCS codes to the F2F/WOPD List (See Table 3).

We have selected codes for three hospital beds, two osteogenesis stimulators, six lumbar sacral orthoses, and two knee orthoses. We note that such items were selected based on our analysis of the CERT improper payment information, practitioner encounter information, jurisdictionally identified billing vulnerabilities, policy analysis, and in coordination with the prior authorization program.

We continue to believe additional practitioner oversight of beneficiaries in need of items included on the F2F/WOPD List will help further our program integrity goals of reducing fraud, waste, and abuse. It helps ensure beneficiary receipt of items specific to their medical needs, as the written order/prescription must be communicated to the supplier prior to delivery. For such items, we continue to require the treating practitioner to have a face-to-face encounter with the beneficiary within the 6 months preceding the date of the written order/prescription.

Per the regulatory guidelines established at § 414.234(b), and as previously discussed, items may be removed from the Master List. If items are removed from the Master List, they are no longer eligible for inclusion on the F2F/WOPD List. As such, as of the effective date of this Federal Register notice, HCPCS L1833 is removed from the Master List and is likewise removed from the Required F2F/WOPD List.

In Federal Register Document 2024-06997 appearing on page 25922 in the Federal Register of Friday, April 12, 2024, the following corrections are made:

This action by the Principal Deputy Assistant Secretary is taken pursuant to an existing delegation of authority.

Wetland habitat in the Prairie Pothole Region (PPR) of Iowa, Minnesota, Montana, North Dakota, and South Dakota is critically important to waterfowl and other migratory bird populations. The unique topography of the PPR includes numerous small wetlands and potholes that were formed through glaciation thousands of years ago. Prairie potholes are freshwater depressions and marshes, often less than 2 feet deep and 1 acre in size, that are a permanent feature of these landscapes barring deliberate alteration of the topography or hydrology. What makes the PPR so biologically important to waterfowl is the seasonal fluctuation of surface water through these permanent wetlands basins. The PPR is responsible for producing approximately 50 to 75 percent of the primary species of ducks on the North American continent, providing habitat for more than 60 percent of the breeding population. Waterfowl fledged in the PPR are a significant natural resource. Waterfowl are a diverse group of birds that are important to many aquatic and wetland ecosystems throughout the country. Additionally, waterfowl hunting and associated industries support thousands of jobs and in 2016 produced an estimated $2.9 billion in economic benefit.

Congress, recognizing the impact that widespread drainage was having on wetlands and waterfowl populations in the PPR, officially created the Small Wetlands Acquisition Program on August 1, 1958, by amending the 1934 Migratory Bird Hunting Stamp Act (commonly referred to as the “Duck Stamp Act”). The amendment allowed proceeds from the sale of Federal Duck Stamps to be used to conserve and protect “small wetland and pothole areas” through the acquisition and establishment of areas designated as Waterfowl Production Areas (WPAs). The Service purchased the first fee-title WPA in South Dakota in 1959, and began to purchase wetland easements soon thereafter. The acquisition of wetland easements accelerated across the PPR following the passage of the 1961 Wetlands Loan Act (Pub. L. 87-383), which authorized appropriations to advance funding for the purchase of wetland easements. Wetland easements are part of the National Wildlife Refuge System, governed by the National Wildlife Refuge System Administration Act (hereafter, “the Administration Act”; 16 U.S.C. 668dd et seq. ).

This rulemaking action codifies new regulations pertaining to easement lands protected by a Service easement for waterfowl management rights (commonly referred to as a “wetland easement”) in the PPR. The easements are areas of land or water acquired and administered by the Service with a less than fee interest for the purpose of maintaining small wetland or pothole areas suitable for use as WPAs.

A wetland easement is a voluntary legal agreement with the Service that pays landowners to permanently protect wetlands. The easement contains restrictions on the use or development of the land to protect its conservation values. The Service's wetland easements are minimally restrictive conservation easements, meaning that they have a minimal impact on the property value and limit the landowner's use and enjoyment of the property to a minor degree. Landowners who sell a wetland easement to the Service agree that wetlands protected by an easement cannot be drained, filled, leveled, or burned. If these wetlands dry up naturally, they can be farmed, grazed, or hayed.

Traditionally, the purpose of subsurface agricultural drainage has been to lower the water table of poorly drained soils with the goal of improving soil aeration. Recently, advanced drainage systems have been promoted as a way to manipulate soil water content during the growing season. Subsurface drainage systems typically remove water through perforated pipe (commonly referred to as drain tile) placed below the soil surface.

Drain tile positioned adjacent to wetland areas can result in reduced hydroperiods (periods of inundation) depending on several factors, such as the depth of tile in relation to the wetland area. The amount and timing of precipitation intercepted by subsurface drainage systems will vary depending on soil properties, topography (low/high topographic relief), placement of tile relative to the wetland area (horizontal distance, elevation), and the relation between the wetland area and groundwater ( i.e., recharge, discharge). Direct drainage of a wetland area by placing perforated tile and surface inlet pipes through (beneath) the wetland area would have a detrimental effect on wetland hydrology regardless of other factors.

Drainage systems positioned adjacent to a wetland area in low-relief terrain have the potential to indirectly affect the wetland area through lateral drainage (lateral effect). The lateral effect is defined as the perpendicular distance on either side of a tile pipe where soil water can be drained by the tile. Drainage systems positioned to encircle a wetland area completely or partially in high-relief terrain can intercept groundwater and precipitation runoff to the wetland area depending on the previously mentioned factors.

Three years ago, the Service developed basic guidance for administering a drain tile setback request process and calculating drain tile setback distances using the best available science. This guidance was captured in a published Director's Memo, which is available at https://www.fws.gov/sites/default/files/documents/Guidance-Memo-Drain-Tile-Setbacks-Wetland-Easements.pdf or in hard copy from your local U.S. Fish and Wildlife Service station. If you need help identifying and contacting your local station, see 50 CFR 2.2 for the contact information of the nearest Regional Office. We refer to this document as the “guidance memo” in the remainder of this document. The guidance memo sets out the basics of the calculation processes for the Service to use when determining drain tile setback distances, including use of the van Shilfgaarde equation, and it establishes that the Service will not pursue legal redress should it later be determined that setback distances provided by the Service were inadequate to protect adjacent wetland areas from drainage. This final rule codifies the key aspects of the guidance memo, such as the use of the best available science and the legal safe harbor for landowners who fully comply with Service-provided setback distances. The guidance memo remains in full effect because it has been incorporated as part of the broader internal guidance. The Service recently finalized the broader internal guidance developed to implement the voluntary drain tile setback program that is codified in this rule. We refer to this as the “internal guidance” or “internal setback guidance” in the remainder of this document. The internal guidance provides Service personnel with direction in administering the drain tile setback process program, which includes guidance on the timeframes for and calculation of Service-provided drain tile setback distances. The internal guidance is consistent with both this rule and the guidance memo, which as noted above is itself part of the internal guidance. The purpose of the internal guidance is to provide more detail than the guidance memo or this rule, particularly elaborating on calculation processes and providing guidelines for internal processes. The internal guidance is available to the public; for a copy, please contact your local U.S. Fish and Wildlife Service station (you can search by zip code, under Refine Your Search, or by map here: https://fws.gov/our-facilities ). If you need help identifying and contacting your local station, see 50 CFR 2.2 for the contact information of the nearest Regional Office. Landowners who want to better understand the internal guidance or who have questions about the context of the guidance are encouraged to contact your local station.

The regulations we are adopting in this final rule provide clarity and certainty to landowners that drain tile may be installed on lands encumbered by a wetland easement provided that protected wetland areas are not drained, directly or indirectly. This rule distinguishes Service wetland easements from the “Swampbuster” provisions of the Food Security Act of 1985 (also known as the “Farm Bill”; Pub. L. 99-198), which allow drain tile to have a “minimal effect” to wetlands. Service wetland easement agreements with landowners include provisions that allow for no effect; hence, drain tile may be installed on a wetland easement tract, but it is a violation of the easement contract if the result is that the tile drains a protected wetland area.

Because the impact of a given drainage system on wetland areas varies greatly depending on site conditions, there are no one-size-fits-all specifications to prevent drain tile installation from draining wetlands and individualized calculations are needed for each drain tile installation. Therefore, on wetland easement lands, landowners will be able to voluntarily request that the Service provide them with individual drain tile setback distances. These regulations require the Service to establish drain tile setback distances based upon the best available science and with due consideration of soil characteristics, tile diameter, the depth of the tile below the surface, and/or topography that ensure protected wetland areas are not drained.

Additionally, these regulations ensure that landowners who adhere to the setback distances prescribed by the Service, including the tile diameters and tile depths below the surface that were used to calculate the Service-provided drain tile setback distances, will not be required to remove drain tile that is later found to have an adverse effect on protected wetland areas. In this way, these regulations recognize that our understanding of the effects that drain tile may have on wetland hydrology is an evolving science. Service-provided drain tile setback distances may prove inadequate to fully protect easement wetland areas from drainage. However, landowners who coordinate their tiling plans with the Service and adhere to the Service-determined setback distances will not later be held criminally responsible or civilly liable for disturbing, injuring, or destroying a unit of the National Wildlife Refuge System ( i.e., draining a protected wetland area) provided the subsurface drainage system is not modified, enhanced, or replaced. These regulations thus provide greater certainty and clarity for both landowners and the Service and encourage communication and collaboration.

This rule codifies in the Code of Federal Regulations the following provisions:

(1) Within a Service-provided timeframe, the Service will provide setback distances for the placement of drain tile on lands covered by wetland easements in Iowa, Minnesota, Montana, North Dakota, and South Dakota;

(2) The Service will provide guidance to landowners about what materials should be submitted as part of a request; and

(3) When a landowner coordinates tile planning with the Service in accordance with this guidance and adheres to the Service-provided drain tile setback distances, including the tile diameters and tile depths below the surface that were used to calculate the Service-provided drain tile setback distances, the Service will not seek legal redress if it is later determined that the Service-provided drain tile setback distances failed to protect the wetland areas from drainage, provided that the drain tile has not been modified, enhanced, or replaced.

The regulations will apply only to setbacks provided by the Service beginning on the effective date of this final rule (see DATES , above).

The Administration Act, as amended by the National Wildlife Refuge System Improvement Act of 1997 (hereafter, “the Improvement Act”; Pub. L. 105-57), governs the administration and public use of refuges.

Amendments enacted by the Improvement Act built upon the Administration Act in a manner that provides an “organic act” for the Refuge System, similar to organic acts that exist for other public Federal lands. The Improvement Act serves to ensure that we effectively manage the Refuge System as a national network of lands, waters, and interests for the protection and conservation of our Nation's wildlife resources. The Administration Act states first and foremost that we focus our Refuge System mission on the conservation of fish, wildlife, and plant resources and their habitats. The Administration Act, as amended, contains 14 directives to the Secretary of the Interior (Secretary), one of which states that, in administering the Refuge System, the Secretary shall ensure effective coordination, interaction, and cooperation with owners of land adjoining refuges. The Administration Act also authorizes the Secretary to issue regulations to carry out the purposes of the Act.

On April 28, 2023, we published in the Federal Register (88 FR 26244) a proposed rule to establish new regulations for wetland easements that would bring consistency, transparency, and clarity for both easement landowners and the Service in the administration of conservation easements, pursuant to the Administration Act, as amended by the Improvement Act. We accepted public comments on the proposed rule for 60 days, ending June 27, 2023. By that date, we received comments from eight commenters on the proposed rule. One commenter's comment was unrelated to the proposed rule. We discuss the remaining substantive topics raised by commenters below.

Comment (1): Five comments expressed general support for the proposed rule. These comments expressed support for drain tile setbacks as a “good idea” to protect wetlands while providing transparency and clarity for landowners whose land is encumbered with an easement for waterfowl management rights (commonly referred to as a wetland easement).

Our Response (1): We appreciate this general support. We designed this rule to make the drain tile setback process more open and transparent, and to simplify and clarify wetland easement responsibilities for both landowners and the Service.

We did not make any changes to the rule as a result of these comments.

Comment (2): Two comments asked the Service to withdraw the proposed rule in its entirety.

Our Response (2): The Service carefully considered the concerns and reasons presented in each of these comments underlying the request to withdraw the proposed rule and not issue a final rule. These concerns, which are addressed below, do not individually or cumulatively provide a persuasive rationale for the Service to withdraw the proposed rule, nor to postpone the issuance of this final rule for further consideration.

Notably, each of these comments expressed support for the Service's guidance memo for wetland easements (see Internal Guidance for Calculating Drain Tile Setbacks, above). The commenters also implied that a part of their reasoning for requesting that the Service withdraw the proposed rule was grounded in the belief that a final rule would supersede the guidance memo; both commenters stated a preference for the guidance memo. As discussed further below in our response to Comment (14), this rule is consistent with the guidance memo, and that guidance memo remains in effect with the publication of this final rule.

We did not make any changes to the rule as a result of these comments.

Comment (3): One comment urged general caution with this rule, given that it allows drain tile into an area with wetland easements.

Our Response (3): The Service acknowledges the concerns underlying this comment and is committed to protecting the wetlands under our easements. At the same time, the Service cannot constrain a landowner's rights without the appropriate agreement and compensation. Through a wetland easement, the Service buys minimally restrictive rights, so the landowner may not drain, burn, fill, or level wetland areas, but we do not purchase rights specifically concerning the installation of drain tile. In some cases, it is possible for landowners to install tile within the boundaries of wetland easements without draining wetland areas, and they have the right to do so in such cases.

The Service's solution to balancing our right to prohibit draining of wetlands under the easement and a landowner's right to install drain tile within the easement boundary, as long as it does not drain those wetlands, is the Service-provided setback process codified by this rulemaking. The need for caution and care in the installation of tile near wetlands is met when landowners coordinate with the Service and are provided with setbacks that adequately protect easement wetlands.

We did not make any changes to the rule as a result of this comment.

Comment (4): Two commenters requested that we ensure the rule considers or is consistent with other drainage and water laws in Iowa, Minnesota, and North Dakota.

Our Response (4): The Service routinely works and coordinates with State agency partners on various aspects of our conservation mission, including water rights and wetland management. The Service works with State agencies, landowners, drainage districts, and water boards regarding efforts to maintain, repair, and replace drain tile and ditches so that drainage of non-easement protected wetlands can continue when in compliance with State and local laws and regulations and when that work will not infringe on the terms of the easement agreement or on the Service's authorities under the Improvement Act or the Migratory Bird Conservation Act (16 U.S.C. 715-715d). We also work with and share resources with States, landowners, drainage districts, and water boards on actions that protect or otherwise benefit fens and other wetlands where we have the jurisdiction and authority to do so.

In shaping this rule, the Service did fully consider existing State laws. This rule does not conflict with any State law, and the same is true for our wetland easement agreements, but in application to specific drain tile projects, this rule and the specific easement agreement may impose different requirements and limitations than those under State law. This is because the Service must protect the legal property interest that was paid for in the wetland easement agreement. The rights acquired protect wetland areas from being drained, burned, filled, or leveled. If these easements could not protect wetlands beyond the baseline protections under applicable State laws, they would have no value to the Service.

In cases where easement agreement requirements impose limitations beyond State law, the easement agreement, and the Service's authority to enforce its terms under the Improvement Act and Migratory Bird Conservation Act, typically supersede the applicable State law. In the United States v. Vesterso (828 F.2d 1234 (8th Cir. 1987)), the Eighth Circuit Court of Appeals upheld that the digging of ditches that damaged Federal easement wetlands in North Dakota was a violation of law and of the easement agreement, even though the digging was permissible under State law. The court found that, under the Administration Act, differences in requirements between Federal easements and State law are to be resolved on a case-by-case basis, so neither overrides the other in all cases. The Federal interest in the natural state of wetlands under an easement must be balanced against the State interest in and authority over State waters. On this point, the Court's opinion stated that while the Service was correct in this case and the easement agreement controlled, the Service does not have a general, absolute right to prohibit alteration of a wetland or interference of the natural flow of water under an easement.

We did not make any changes to the rule as a result of these comments.

Comment (5): Three comments referenced other permitting agencies and/or drainage laws and encouraged the Service to notify landowners receiving Service drain tile setbacks that other agencies, including Federal, State, and local governments, local watersheds and water boards, and other permitting authorities, will need to be consulted to ensure landowners' drain tile projects comply with other permitting entities.

Our Response (5): As part of our standard process, the Service notifies landowners that the drain tile setback received from the Service only addresses the Service's wetland easement on their property and that they will need to coordinate with State and local governments, watersheds, water boards, and other permitting authorities when installing drain tile on their land to ensure their project complies with all Federal, State, local, and other laws, statutes, codes, and policies.

We did not make any changes to the rule as a result of these comments.

Comment (6): Three comments requested that the Service specifically state in the regulation what the “Service-provided timeframe” is for processing a drain tile setback.

Our Response (6): The Service understands the concern of landowners and other stakeholders for timely delivery of setback decisions. We are committed to timely communication and delivery of setback distances. Our aim is to provide landowners with an estimate of the setback calculation timeline for their specific case within 2 business weeks of receiving their request on FWS Form 3-2554. We also anticipate that, in most cases, we will be able to provide drain tile setback distances within 60 calendar days. However, there are various factors that prevent the Service from specifying a uniform deadline for this process. This includes logistical factors, such as the availability of expert personnel and scheduling of on-site assessments, and factors that are a part of the actual calculations, such as the unique physical features of a given wetland. Several of these factors are noted in our publicly available internal guidance for calculating setbacks (see Internal Guidance for Calculating Drain Tile Setbacks, above). In that internal setback guidance, we provide the guiding principles for what constitutes a reasonable timeframe for Service employees calculating setback distances.

We did not make any changes to the rule as a result of these comments.

Comment (7): One commenter asked what was meant by the term “best available science” and questioned the absence of a definition in the proposed rule.

Our Response (7): The term “best available science” is a well-defined and long-established legal standard for the actions of science-driven Federal Government agencies. For example, the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq. ), as amended, requires species listings to be based on the “best scientific and commercial data available.” As the use of the term in this final rule does not depart from its established legal meaning, which itself is consistent with the plain meaning of the phrase, providing a definition in this rule is not necessary.

The Service will ensure that our policy for, our guidance on, and our implementation of the wetland easement program are all based on scientific data and information. We will also ensure that, of the sources of relevant scientific information available to us, we make use of the “best” science by considering objective indicators of scientific quality such as peer review, replication, quality and calibration of equipment, robustness of models, and so forth, when determining which information should carry the most weight in our processes.

We did not make any changes to the rule as a result of this comment.

Comment (8): Two comments expressly noted that the provisions of the proposed rule would have no retroactive effect, but seemed to have different understandings of the implications of this fact and differing opinions as to whether the rule should have retroactive effect.

Our Response (8): Clarification on the point of retroactivity should resolve the concerns of both of these commenters and any other members of the public on this point.

The regulations in this rulemaking will not have retroactive effect; they will apply only to setbacks provided by the Service beginning on the effective date of this final rule (see DATES , above). This rule creates a voluntary process for landowners to request drain tile setback distances. There is no requirement to request or to make use of Service-provided setback distances, but the rule does provide a legal safe harbor for those landowners who do both. Thus, those landowners who have never before requested setback distances from the Service are in the same position regardless of whether or not the rule has retroactive effect. This is why the absence of retroactive effect could only be relevant to those landowners who received Service-provided setback distances under our guidance memo on drain tile setbacks (see Internal Guidance for Calculating Drain Tile Setbacks, above). In that case, however, the position of those landowners is also unchanged, since the guidance memo remains in full effect and will guide refuge personnel in implementing these new regulations. This rule merely codifies the key principles of our guidance memo.

In summary, the rule only has prospective effect, but this does not change the status of either (1) landowners who have never requested setback distances and thus have no legal safe harbor should they install tile that drains an easement wetland; or (2) landowners who requested and complied with setback distances and thus do have a legal safe harbor should their drain tile nevertheless drain an easement wetland. What the prospective effect does mean is that the voluntary process for setback requests and receiving legal safe harbor is further solidified by inclusion in our regulations and that landowners who request and fully comply with setback distances from the Service in the future can be assured of legal safe harbor.

We did not make any changes to the rule as a result of these comments.

Comment (9): Two commenters requested that the Service offer assurance that a landowner who follows the Service-provided setback will be afforded a legal safe harbor regardless of whether the Service-provided setback distances do or do not protect the wetland from drainage.

Our Response (9): The Service understands the importance for landowners of our commitment not to seek legal redress against landowners who coordinate with the Service and fully cooperate with the Service's setback determinations. In fact, providing assurance on this point is one of the Service's primary reasons for pursuing this rulemaking. This rule codifies exactly this type of assurance for landowners, as directly stated in the regulatory provisions at 50 CFR 25.24(c) (see Regulation Promulgation, below). Regarding this protection from legal redress, the regulations we are adopting in this rule specifically state that when a landowner coordinates tile planning with the Service in accordance with the regulations and adheres to the Service-provided drain tile setback distances, then the Service will not seek legal redress if it is later determined that the drain tile setback distances provided by the Service failed to protect the wetland areas from drainage, provided that the drain tile has not been modified, enhanced, or replaced.

We did not make any changes to the rule as a result of these comments.

Comment (10): One comment requested that the regulations clarify that maintenance and repairs of drain tile systems installed in accordance with Service guidance or coordination are permissible without any further agency involvement.

Our Response (10): Landowners with wetland easements on their property are always allowed to install and to maintain drain tile systems, but if the tile drains wetlands in violation of the Service's easement, then the landowner may face legal action. In the interest of both parties, the Service offers a voluntary process for landowners to request a Service-provided setback; landowners who fully comply with the Service-provided setback distances when installing or maintaining a drain tile system are shielded from legal action. In the case of a landowner's actions to maintain or repair a drain tile system, remaining within this legal safe harbor requires that the landowner's maintenance or repair actions do not amount to a modification, enhancement, or replacement of the system. This requirement is provided in the regulatory provision at 50 CFR 25.24(c) (see Regulation Promulgation, below), where it clearly states that drainage of an easement wetland, after installation of a drain tile system in accordance with a Service-provided setback, will not result in the Service taking legal action provided that the drain tile has not been modified, enhanced, or replaced.

Drain tile systems installed in accordance with Service guidance or coordination should not drain easement-protected wetland areas. Therefore, routine maintenance and repair actions that do not amount to modification, enhancement, or replacement, whether or not coordinated with the Service, would not invalidate the safe harbor protections provided to landowners who install drain tile systems in accordance with Service-provided setbacks and other guidance. A true maintenance or repair action should not change the tile system in a way that impacts the Service's setback distances. For example, substituting one 4-inch tile for another 4-inch tile at the same location and depth would be a routine repair that does not invalidate the landowner's legal safe harbor. This difference between a routine maintenance and repair action and an action to modify or enhance the drain tile system, or to replace it with another system altogether, is commonly understood for those landowners who employ and those service providers who install drain tile systems, so further clarification in the regulatory provision is not necessary.

At the same time, a wetland easement agreement is a commitment to shared responsibility for the designated wetlands and an important piece of that shared responsibility is effective communication between landowners and the Service. The Service encourages landowners to be generally communicative about all aspects of wetland easement agreements and is committed to helpful communication in return. Specific to maintenance and repair of a drain tile system installed in accordance with Service-provided setback distances, continued communication is as mutually beneficial as the setback process. In fact, the only way for a landowner to be truly certain whether the maintenance or repair actions they wish to take would constitute a modification, enhancement, or replacement, and thus whether they remain within the legal safe harbor regulatory provision, is to coordinate the maintenance or repair with the Service.

We did not make any changes to the rule as a result of this comment.

Comment (11): One comment stated that there should be no need for any later assessments or determinations of whether the setback distances provided the desired wetland protection where a landowner installs drain tile based on Service-provided setback distances, given the legal safe harbor for the landowner in the event the wetland is drained.

Our Response (11): The Service periodically monitors all of our wetland easements using a variety of nonintensive methods, such as aerial photography. In the interest of both landowners and minimal disturbance to wetlands, we seek to not monitor more often or more intensively than necessary. Our existing publicly available policy on wetland easements requires periodic monitoring and sets out the monitoring methods that our personnel may use (see Service Manual at 601 FW 6 at https://www.fws.gov/policy-library/601fw6 ).

In the specific situation of a landowner installing drain tile according to Service-provided setbacks, we will continue to monitor the wetlands on that property in the same manner as any other property subject to an easement. We will do this for three reasons. First, as noted above, our policy requires monitoring all of our wetland easement interests. Second, we need to monitor these wetlands in the interest of our overall migratory bird and waterfowl wildlife management responsibilities and wildlife conservation mission, which constitute the purpose for obtaining and maintaining these easements. Third, while the landowner may have complied with Service-provided setbacks at the time of drain tile installation, full compliance with the Service's setbacks under these regulations, and thus securing the legal safe harbor for the landowner, also requires that a landowner does not subsequently modify, enhance, or replace the drain tile system. This means that we need to continue monitoring to identify when an easement wetland has been drained. If an easement wetland has been drained, we determine whether the landowner has modified, enhanced, or replaced the drain tile system in order to determine whether or not the legal safe harbor applies and the Service should or should not seek legal redress. Moreover, monitoring for this purpose is critical because identifying when an easement wetland has been drained may be the best, or even the only, signal for us that a landowner has modified, enhanced, or replaced the drain tile system after the initial installation.

We did not make any changes to the rule as a result of this comment.

Comment (12): One comment urged that the Service should not seek legal redress against a landowner in cases where a drainage district acts in a manner inconsistent with the provisions in the proposed rule, and that this should be stated in the regulations.

Our Response (12): It is unclear how a drainage district could act inconsistently with the provisions in this rule, as this rule provides a process for landowners to request and obtain setback distances from the Service and, if they fully comply with those setback distances, be assured of a legal safe harbor in the event a wetland is drained. Assuming that the commenter is referring to actions taken by a drainage district that could violate the terms of a wetland easement, such as draining an easement-protected wetland, then our response is that we cannot provide any such provision in the regulations.

The Service will determine an appropriate response in this type of situation on a case-by-case basis, and accordingly will not commit to any blanket limitation on our options for legal redress merely because a drainage district is involved and may bear more responsibility than the landowner for the easement violation. Unless the legal safe harbor for landowners codified by this rule applies, the Service reserves the right to seek legal redress against any and all responsible parties in the event of drainage of a wetland in violation of a wetland easement, or any other violation of the terms of a wetland easement, to the full extent of applicable law.

We did not make any changes to the rule as a result of this comment.

Comment (13): One comment expressed the concern that due to the distribution of small easement wetlands throughout a landowner's property and the setback distances provided by the Service, there might not be any location on the property where the landowner can install drain tile that complies with the Service's setbacks. This commenter was also concerned that in this case the rule prevents the landowner from installing drain tile.

Our Response (13): This rule does not prevent any landowner from installing drain tile. As discussed above under our response to Comment (10) , landowners with wetland easements on their property are always allowed to install drain tile systems, but if the tile drains wetlands in violation of the Service's easement, then the landowner may face legal action.

The situation described by this commenter is possible. The locations and measurements of the overall property, the protected wetland areas, and the calculated setback distances may in some cases be such that there is no location within the borders of the overall property where drain tile can be placed that is setback from all easement wetlands at the distances determined by the Service's calculations. In such a case, the landowner may nevertheless choose to install drain tile, but they would do so at the risk of draining one or more easement wetlands and without the assurance of a legal safe harbor.

Conversely, other landowners may find that they are able to install drain tile on a wetland easement and setback from all wetlands in full compliance with the setback distances calculated by the Service, and thus ensure a legal safe harbor for the installation. Where a landowner's property fits along the continuum bounded by these two situations depends on the size and distribution of the wetlands, the hydrology of the wetlands, and other factors unique to each property.

We did not make any changes to the rule as a result of this comment.

Comment (14): Two comments expressed support for the Service's guidance memo on calculating drain tile setbacks, finalized in 2020. Both of the comments urged the Service to revise the proposed rule to explicitly reference the guidance memo, and one also urged codifying the setback calculation content from the existing Service guidance.

Our Response (14): The guidance memo remains in full effect (see Internal Guidance for Calculating Drain Tile Setbacks, above). The guidance memo, as well as our internal guidance more generally and any future updated guidance, need not be expressly referenced in the regulations in order to guide Service administration of wetland easements (see Internal Guidance for Calculating Drain Tile Setbacks, above). There is nothing incongruent between the guidance memo and this rule. The guidance memo was developed based on the best science available at that time. It also assures landowners that the Service will not pursue legal redress should it later be determined that setback distances were inadequate to protect adjacent wetland areas from drainage. This regulation codifies these two principles, ensuring that Service calculations will be based on the best available science to prevent protected wetland areas from drainage and that landowners who fully cooperate with Service-provided setbacks will have a legal safe harbor.

Including the calculation processes of the Service's guidance memo in the regulations, however, would not be in the interest of the Service or landowners. In order for setback calculations to be based on the best available science, the Service needs to be able to update our processes as empirical experience and new scientific studies provide new information. Updating those processes through rulemaking is inefficient and unnecessary. As the Service and other agencies routinely do, the Service has codified our obligation to use the best available science in regulation and will then keep our publicly available, detailed internal guidance up-to-date and effective. This will allow us to best protect wetlands while also providing accurate, no-farther-than-necessary setback distances to landowners.

We did not make any changes to the rule as a result of these comments.

Comment (15): One comment included a request that the Service make the methodology for determining a drain tile setback publicly available, and that the Service invite public comments any time the Service proposes to change the methodology.

Our Response (15): The Service's internal setback guidance documents containing the methodology for determining a drain tile setback are publicly available (see Internal Guidance for Calculating Drain Tile Setbacks, above). Landowners retain the right to challenge the Service's methodology if they believe there was an error in our methodology or in our application of the methodology to their case. This provides an efficient, reasonable, and open process for setback determinations.

The Service's methodology was established using the best available science and the expertise and best professional judgment of Service personnel to provide adequate protection for wetland easement areas.

We did not make any changes to the rule as a result of this comment.

Comment (16): Two comments called for the Service to establish an administrative appeal process that is independent of the direction and control of the Service.

Our Response (16): Administrative appeals processes are a common feature of good government throughout Federal agencies. These processes allow agency subject-matter expertise to form the administrative hearing record and inform the decision reached on appeal. They also allow the agency to double-check its initial decision so that it can identify, and thereby more quickly address, any errors that were made. Regulated parties, in this case landowners, always have the option of appealing the ultimate agency decision to a judicial branch court after exhausting the administrative appeals process, which is sufficient to address any potential errors in the administrative appeal process that could harm their interests.

In the U.S. Federal Government, no administrative appeals process external to the agency whose final decision is being challenged exists. Quasi-independent administrative tribunals and review boards do exist, such as the Environmental Appeals Board, a body that hears appeals of Environmental Protection Agency (EPA) final decisions and reports directly to the EPA Administrator outside of the regular EPA line authority. The commenters presented no compelling evidence that the current administrative appeals process is inherently flawed or not reaching appropriate determinations concerning wetland easements. The Service is also not otherwise aware of any reasons the existing appeals process is inadequate. We do not see any need at this time to devote considerable resources toward the creation of a quasi-independent body to hear appeals of Service decisions concerning wetland easements.

Landowners who disagree with a Service-provided setback distance, or another final decision concerning wetland easements, may appeal to the appropriate Regional Director in accordance with the procedure established by 50 CFR 25.45.

We did not make any changes to the rule as a result of these comments.

Comment (17): One comment questioned how landowners will be notified of the responsibility to request a setback to protect the wetlands on their land that are subject to a wetland easement.

Our Response (17): This rule does not obligate or require any landowner to request a drain tile setback. We have created a voluntary process for landowners to request and receive a Service-provided drain tile setback to facilitate coordination between landowners and the Service and to improve landowner compliance with the requirements of the Service's wetland easements. This process benefits landowners in that it provides a legal safe harbor for landowners who fully comply with the Service's setback determination, as the Service will not seek legal redress in the event that the wetland drains despite the landowner's adherence to the Service's setback determination. Landowners have the right to install drain tile on their land without requesting a Service-provided setback, but in that case, they are legally obligated to ensure by their own efforts that the drain tile does not violate any wetland easement agreement with the Service by draining protected wetlands.

While the setback request process is voluntary, the Service will make efforts to notify landowners about this mutually beneficial opportunity. The Service intends to publicize the opportunity through various communication channels. In fact, our existing internal guidance provides strategies, and our process includes steps for communication with landowners concerning their ability to request a Service-provided setback. The publication of this rule and the regulations that we are codifying in the Code of Federal Regulations will also serve as public notice of this opportunity for landowners with wetland easement agreements.

We did not make any changes to the rule as a result of this comment.

Comment (18): One comment expressed concern that the rule does not clearly tell the landowner what lands are subject to the easement or provide adequate notice as to the reasonable parameters of the easement.

Our Response (18): This rule provides a general framework for the Service in regulating all of our wetland easement interests, so it is not the appropriate place to delineate individual easement boundaries in detail. The appropriate place to clarify the boundaries of the Service's wetland easement is in each wetland easement agreement document itself. That is why each easement document includes a clear legal description of the lands that are subject to the easement. In fact, multiple courts have found the parameters in individual easement documents to be clear (see, e.g., United States v. Albrecht, 496 F.2d 906 (8th Cir. 1974) (using the phrase “precise draftsmanship” in reference to the terms of the easement agreement), and United States v. Seest, 631 F.2d 107 (8th Cir. 1980)).

For the same reasons, this rule is not the appropriate means of notifying landowners of the parameters of wetland easements. Landowners are adequately notified of the easement and the extent to which it encumbers their property either when signing the wetland easement agreement with the Service or when performing due diligence before obtaining land subject to an existing wetland easement from another private landowner. Every easement document is registered and publicly available in the applicable State or county land records, and landowners can also obtain a copy by contacting their local U.S. Fish and Wildlife Service station. (If you need help identifying and contacting your local station, see 50 CFR 2.2 for the contact information of the nearest Regional Office.) Review of the easement document provides a landowner with the necessary details of the boundaries of the easement. Thus, landowners should know of all the reasonable parameters. Landowners who are nevertheless unsure of the parameters of an easement are welcome to consult the Service by contacting their local U.S. Fish and Wildlife Service station. (If you need help identifying and contacting your local station, see 50 CFR 2.2 for the contact information of the nearest Regional Office.)

We did not make any changes to the rule as a result of this comment.

Comment (19): One comment requested that, for newly acquired wetland easements, the Service ensure landowners agreeing to the easements understand what limitations are associated with drain tile installation.

Our Response (19): The Service takes steps to ensure that new landowners are aware of the limitations on drain tile installation that wetland easements require. The Service's Realty Specialists working with new landowners who are enrolling their land in wetland conservation easements inform landowners of what rights the Service acquires or restricts during the easement agreement process. This ensures landowners are aware of what a wetland easement will mean for them before they sign an easement document. Most importantly, the Service clearly articulates that no wetlands protected by the easement can be drained. If a landowner wants to retain the ability to drain a given wetland area, they can choose to not include that individual wetland area in the wetland easement.

We did not make any changes to the rule as a result of this comment.

Comment (20): Two comments requested that the regulations be revised to inform landowners exactly what information and materials will be required from them when they request a drain tile setback.

Our Response (20): The Service recognizes that landowners are rightfully cautious about their private information. The Service developed FWS Form 3-2554 for landowners to use to request a drain tile setback from the Service. The form was available for public comment in our Information Collection Request on OMB's website at https://www.reginfo.gov/public/. In response to these comments, this final rule now directly references the form. FWS Form 3-2554 requests basic contact information for the landowner, along with the easement number(s) for the specific land covered by the wetland easement. In response to these comments, we have revised the form to also request desired tile depths and diameters, as well as attachment of relevant installation plans, to facilitate our setback calculations.

It would be inefficient to specify in our regulations the exact information requested by the form, especially as this could change over time. Instead, the Service is specifying the form in the regulations, has ensured the form contains all currently needed information, and will ensure the form remains updated in the future. The Service is following processes established by the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) for FWS Form 3-2554. This includes ensuring that the information collection is reasonable, that no more information is collected than necessary, and that the form is renewed every 3 years so that it remains updated and compliant with the other requirements. The Privacy Act of 1974 (5 U.S.C. 552a) also ensures that private information provided on the form is protected.

We made changes to the rule as a result of these comments. Specifically, we added a direct reference to FWS Form 3-2554 and added additional fields to the form. This provides greater clarity on what information and materials landowners must provide when requesting a drain tile setback.

Comment (21): One comment expressed concern that the proposed rule does not include any assurances that information provided by landowners will be confidential and not subject to the Freedom of Information Act (FOIA; 5 U.S.C. 552, as amended by Pub. L. 104-231, 110 Stat. 3048).

Our Response (21): The Service, like all other agencies in the Executive Branch, must comply with FOIA. FOIA requires that any person may request access to records of the Executive Branch of the United States, and copies of the records must be provided in full, except to the extent that all or specific portions of the record fall under one or more of the exempt categories. Among these exempt categories are information that would violate an individual's right to privacy and information that constitutes trade secrets or other confidential commercial or financial information (see 5 U.S.C. 552(b)). Thus, the Service may be compelled to turn over redacted copies of certain records concerning wetland easements, but the personally identifiable information of landowners and any proprietary commercial information in the records, including the information collected on FWS Form 3-2554, are exempt from FOIA and not disclosed. As this is a general exemption to FOIA applicable across the Federal Government, it need not be specified in our regulations. We did, however, add a standard FOIA statement to the form that helps to clarify the point that business information is FOIA exempt and directs landowners to label the information that they consider to be business information when submitting the form.

We did not make any changes to the rule as a result of this comment, but we did modify the associated setback request form to add a standard FOIA statement on business information.

As discussed above under Summary of Comments and Responses, based on comments we received on the April 28, 2023, proposed rule (88 FR 26244), we made changes in this final rule and to the associated setback request form. In this final rule, we added a direct reference to FWS Form 3-2554 in the regulation at 50 CFR 25.24(b) (see Regulation Promulgation, below). In the FWS Form 3-2554, we added three fields pertaining to technical information: one requesting the desired depths of the drain tile installation, if known; one requesting the desired diameters of the drain tile installation, if known; and one requesting that the landowner attach their drain tile installation plan, if available. We also added a standard FOIA statement to the form that clarifies business information is FOIA exempt and directs landowners to label the information that they consider to be business information when submitting the form. These changes were made in response to comments requesting that we provide more specificity as to what information and materials landowners will be asked to include when requesting a Service-provided setback.

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). Regulatory analysis, as practicable and appropriate, shall recognize distributive impacts and equity, to the extent permitted by law. We have developed this rule in a manner consistent with these requirements.

E.O. 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 (OMB) will review all significant rules. OIRA has determined that this rulemaking action is not significant.

Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency must publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities. However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. SBREFA amended the RFA to require Federal agencies to provide a statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities. Thus, for a regulatory flexibility analysis to be required, impacts must exceed a threshold for “significant impact” and a threshold for a “substantial number of small entities.” See 5 U.S.C. 605(b).

Within the Prairie Pothole Region (comprising Iowa, Minnesota, North Dakota, South Dakota, and Montana), there are approximately 28,000 wetland easements, of which the majority are located on privately owned farmland. Thus, small businesses within the crop production industry (North American Industry Classification System 111) may be impacted by the rule. One aspect of the rule codifies the Service's existing drain tile setback practices; therefore, the effect of this regulatory provision on small businesses will be negligible. The rule also provides legal certainty for landowners who adhere to the setback distances prescribed by the Service. The information collection form to request the setback distances is estimated to take 25 minutes, which will be negligible for small businesses. Currently, approximately 20 landowners annually (less than 0.01 percent) must remove drain tile systems because they do not adhere to the contract that granted the easement. As a result of the added benefit of legal certainty, the rule may provide the incentive to these landowners to adhere to the contract and, thus, reduce the costs of removing drain tile systems. The average annual number of small businesses (20) potentially impacted by this rulemaking is not substantial.

Therefore, we certify that this rule will not have a significant economic effect on a substantial number of small entities as defined under the RFA. A regulatory flexibility analysis is not required. Accordingly, a small entity compliance guide is not required.

This rule is not a major rule under 5 U.S.C. 804(2) of the Congressional Review Act. We anticipate no significant employment or small business effects. This rule:

a. Will not have an annual effect on the economy of $100 million or more. The minimal impact will be scattered across five States and will most likely not be significant in any local area.

b. Will not cause a major increase in costs or prices for consumers; individual industries; Federal, State, or local government agencies; or geographic regions.

c. Will 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.

This rule will not impose an unfunded mandate on State, local, or Tribal governments or the private sector of more than $100 million per year. The rule will not have a significant or unique effect on State, local, or Tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq. ) is not required.

In accordance with E.O. 12630, this rule will not have significant takings implications. A takings implication assessment is not required. The rule does not have any takings implications because it will not impact protected property rights. The rule provides clarity and standardization of the Service's existing process for providing drain tile setback distances to landowners and provides landowners with legal protection when they choose to follow the Service's setback distances. The rule does not require landowners to consult the Service regarding setback distances, nor does it require landowners to follow the Service's setback distances if they are provided.

Under the criteria in section 1 of Executive Order 13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. A federalism summary impact statement is not required.

In accordance with E.O. 12988, the Department of the Interior has determined that this rule will not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order.

This rule is not a significant energy action under the definition in Executive Order 13211. A statement of energy effects is not required.

The Department of the Interior strives to strengthen its government-to-government relationship with Indian Tribes through a commitment to consultation with Indian Tribes and recognition of their right to self-governance and Tribal sovereignty. We have evaluated this rule under Executive Order 13175 and have determined that it has no substantial direct effects on federally recognized Indian Tribes.

This rule contains new information collections. All information collections require approval under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). We 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. The OMB reviewed the information collection requirements associated with requesting individualized drain tile setback distances for wetland easements in the PPR and assigned the placeholder OMB Control Number 1018-0196, pending final review and approval of the following:

Upon the request of a landowner (via submission of FWS Form 3-2554), the Service will provide setback distances for the placement of drain tile on lands covered by wetland easements. The setback distances will be based on best available science and must be adequate to ensure protected wetland areas are not drained. Information collected via FWS Form 3-2554 includes basic contact information for the landowner, along with the easement number(s) for the specific land covered by the wetland easement.

Revisions to Form Since Proposed Rule Phase: In response to public comments, we revised the form to also collect technical information about the contemplated drain tile installation, specifically the desired drain tile depths and diameters, and request that the landowner attach any plans they have prepared for the installation ( e.g., a geographic information system (GIS) Shapefile). We also updated the reporting and recordkeeping time burden estimates to be 10 minutes for reporting and 15 minutes for recordkeeping. Finally, we added a standard FOIA statement to the form that clarifies business information is FOIA-exempt and directs landowners to label the information that they consider to be business information when submitting the form.

The Service will provide guidance to landowners about what materials should be submitted as part of a request and will provide setback distances to landowners within a Service-provided timeframe. When a landowner coordinates their tile planning with the Service in accordance with this guidance and adheres to the Service-provided drain tile setback distances, the Service will not seek legal redress if it is later determined that Service-provided drain tile setback distance failed to protect the wetland areas from drainage, provided that drain tile has not been modified, enhanced, or replaced.

Title of Collection: Requests for Drain Tile Setback (50 CFR part 25).

OMB Control Number: 1018-0196.

Form Number: FWS Form 3-2554.

Type of Review: New.

Respondents/Affected Public: Individuals/households, businesses, and State/local/Tribal governments.

Total Estimated Number of Annual Respondents: 150.

Total Estimated Number of Annual Responses: 150.

Estimated Completion Time per Response: 5 minutes for reporting and 10 minutes for recordkeeping requirements.

Total Estimated Number of Annual Burden Hours: 63.

Respondent's Obligation: Required to obtain or retain a benefit.

Frequency of Collection: On occasion.

Total Estimated Annual Nonhour Burden Cost: None.

On April 28, 2023, we published in the Federal Register (88 FR 26244) a proposed rule (RIN 1018-BG80) that announced our intention to request OMB approval of the information collections identified in the rule. In that proposed rule, we solicited comments for 60 days on the information collections in this submission, ending on June 27, 2023. Summaries of comments addressing the information collections contained in this rule, as well as the agency response to those comments, can be found above under Summary of Comments and Responses, as well as in the information collection request submitted to OMB on the RegInfo.gov website at https://www.reginfo.gov/public/.

As part of our continuing effort to reduce paperwork and respondent burdens, we invite the public and other Federal agencies to comment on any aspect of this information collection, including:

(1) Whether or not the collection of information is necessary for the proper performance of the functions of the agency, including whether or not the information will have practical utility;

(2) The accuracy of our estimate of the burden for this collection of information, including the validity of the methodology and assumptions used;

(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and

(4) Ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of response.

Send your written comments and suggestions on this information collection by the date indicated in DATES to OMB, with a copy to the Service Information Collection Clearance Officer, U.S. Fish and Wildlife Service, 5275 Leesburg Pike, MS: PRB (JAO/3W), Falls Church, VA 22041-3803 (mail); or Info_Coll@fws.gov (email). Please reference “OMB Control Number 1018-0196 Drain Tile Setbacks” in the subject line of your comments.

We are required under the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq. ) to assess the impact of any Federal action significantly affecting the quality of the human environment, health, and safety. We have determined that the rule falls under the class of actions covered by the following Department of the Interior categorical exclusion: Policies, directives, regulations, and guidelines that are of an administrative, financial, legal, technical, or procedural nature; or whose environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis and will later be subject to the NEPA process, either collectively or case-by-case (43 CFR 46.210(i)). The regulations codify existing Service practice in administering minimally restrictive wetland easements.

Debbie DeVore, Division of Natural Resources and Conservation Planning, National Wildlife Refuge System, is the primary author of this rulemaking document.

For the reasons set forth in the preamble, we amend title 50, chapter I, subchapter C of the Code of Federal Regulations as set forth below: