This rule establishes revised 2024 fees for grain inspection and weighing services provided by the Agricultural Marketing Service's (AMS) Federal Grain Inspection Service (FGIS or the Service). The new fees account for the actual cost of FGIS providing official services. The new fees were calculated using formulas modeled after those in other AMS user-fee grading programs. A forthcoming notice of proposed rulemaking to be published separately will amend FGIS's user fee regulations to incorporate the formulas.

The USGSA authorizes and requires the Secretary to charge and collect reasonable fees to cover the estimated costs for performing official grain inspection and weighing services (which are mandatory under the Act for U.S. grain exports). In 2015, Congress amended the USGSA to provide that “[i]n order to maintain an operating reserve of not less than 3 and not more than 6 months, the Secretary shall adjust the fees . . . not less frequently than annually.” (7 U.S.C. 79(j)(4) and 79a(l)(3)) To comply with these provisions, FGIS (then the Grain Inspection, Packers, and Stockyards Administration (GIPSA)) issued regulations requiring the agency to review and adjust fees annually in order to maintain a 3- to 6-month reserve of operating expenses. (81 FR 49855)

Through those regulations, the Service determined that a 4.5-month operating reserve would comply with the statutorily required operating reserve of 3 to 6 months. In years when the operating reserve has been sufficient, for each $1 million that the reserve's balance exceeded 4.5 months, the Service reduced fees by 2 percent, and no greater than 5 percent. Conversely, in years when the operating reserve was projected to be insufficient, for each $1 million that the balance fell short of the 4.5-month target, the Service increased fees by 2 percent, while also capping such increases at 5 percent. In accordance with the current regulations, annual fees cannot increase or decrease by greater than 5 percent. The intention of this regulatory cap had been to limit the magnitude of an annual fee adjustment.

The current regulations provide for FGIS review and revision of fees annually (7 CFR 800.71(b)) to establish the tonnage fees (national and local) and supervision fees. The annual adjustment of fees is based on the operating reserve total at the end of the prior fiscal year. Fees are increased or decreased to maintain an operating reserve of 4.5 months of operating expenses. Historically, the operating reserve balance remained higher than the 4.5-month target, so FGIS annually reduced fees by the maximum amount, 5 percent, in 2017 (81 FR 96339), 2018 (83 FR 6451), and 2019 (84 FR 11926); and by 2 percent in 2020 (85 FR 8536).

However, at the close of FY 2020, FGIS was operating at a loss of $5 million and had an operating reserve balance below 4.5 months of operating expenses. In accordance with current regulations, FGIS increased fees by 5 percent in 2021 (86 FR 1475), 2022 (87 FR 920), and 2023 (88 FR 18512). These annual fee increases were not sufficient to both cover operating costs and a maintain a sufficient operating reserve. Because of the limitations on the magnitude of the annual increase, 2023 fees were lower than those charged in 2016 ( e.g., the contract regular hourly rate in 2016 was $40.20 and, in 2023, the rate was $39.20). A drop in export tonnage (and its associated revenue) further increased the FGIS deficit. Table 1 below illustrates the interplay between FGIS revenues, reserve balances, and export tonnage over the previous 5 years.

Since 2021, the expected revenue from user fees has been lower than the Service anticipated. Since 2021, the export volume (on which FGIS assesses tonnage fees) has declined year-over-year: by 10 percent in 2022, 22 percent in 2023, and 10 percent year-to-date in 2024. Reduced export volume has also impacted FGIS' ability to reestablish a sufficient operating reserve. This decline has been, in part, impacted by natural disasters. Though export volumes vary depending on weather, prices, and global demand, export volumes had risen in consecutive years since 2018. This significant decline was not expected, and the hurricane and severe drought were major unexpected events that contributed to the sudden decline in export volume.

In August 2021, Hurricane Ida struck the coast of Louisiana just prior to the high-volume harvest season. The lower Mississippi River handles over half of U.S. grain exports, and many of the major grain exporters sustained damage and could not return to normal operations for months. Grain export inspection volume declined year-over-year by 10 percent in 2022, and corresponding FGIS user fee revenue dropped by $3 million in FY 2022.

Then, in 2022, a severe drought struck the midwestern U.S., and parts of the Mississippi River, which handles the barge traffic to feed the nation's largest export market, sunk to the lowest levels in recorded history, dating back 143 years. Those record-low river levels hindered barge and vessel loading operations, and export volumes declined by another 22 percent year-over-year from 2022 to 2023. FGIS experienced another $3.5 million reduction in revenue for the same period. In the two years following the hurricane and drought, FGIS revenue was down a combined $6.5 million. Agency operating costs were also significantly impacted by the COVID-19 Pandemic, as well as information technology and cost-of-living expenses increases.

While the above discussed conditions individually presented significant challenges, their unprecedented, cumulative effect over a short time span limited FGIS's ability to recover its costs and contributed to the depletion of FGIS's reserves, jeopardizing its current ability to sustain and provide inspection and weighing services.

Under the current regulations, FGIS can review all fees to “. . . ensure they reflect the true cost of providing and supervising official service.” (7 CFR 800.71(c)) Given the confluence of events outside the agency's control, FGIS performed a periodic review in 2023 that examined the costs of all services offered. The review disclosed that most FGIS fees were misaligned with their actual costs and the current regulatory fee formula did not account for all agency costs. This misalignment and failure to account for actual costs has contributed to the current financial situation. The operating reserves for grain inspection and weighing activities at the end of FY 2023 were $0. With higher costs and lower export volume, FGIS faces a widening deficit for FY 2024, estimated to be approximately ($9 million), unless it makes immediate fee adjustments. In addition to the need for an immediate fee adjustment, the agency also determined that the current fees do not fully account for the agency's operating expenses. Without an immediate increase in fees to reflect the true cost of providing and supervising official services, FGIS must cease operations and will not be able to provide mandatory inspection and weighing services for the grain industry. In 2023, FGIS presented potential fee scenarios at public meetings and received stakeholder feedback that official services are necessary and add value to U.S. grain commodities. Stakeholders cautioned against large swings in the fees. They also acknowledged that FGIS has a responsibility to carry out inspection and weighing services and maintain appropriate reserves to sustain operations.

In addition to conducting the 2023 Periodic Review, FGIS has also implemented cost-saving measures to mitigate losses where possible. In FY24, the agency has frozen hiring of inspection and weighing staff, reduced travel to “mission-critical only,” reduced overtime at elevator locations, frozen employee awards, and reassigned underutilized staff to other field offices. These measures are appropriate and necessary but will be insufficient to correct the financial deficit and rebuild the operating reserve.

The new fees are based on the actual costs FGIS incurs in providing official services and the need to re-establish an operating reserve. The existing FGIS tonnage formula only accounts for fees assessed on grain tonnage and supervision of official agencies (§ 800.71(b)(1) and (2)); it excludes direct service costs and unit fees. In contrast, the new fees account for these costs.

FGIS utilized the formulas described below to calculate the revised fees announced in this interim rule. Salaries, hours, and most rates used in the formulas are based on the prior fiscal year's obligations and hours of service. Some rates, such as those for equipment use and specialist laboratory services, are based on unique cost components that are not accounted for in the prior fiscal year's obligations and service hours. FGIS has rounded the final rates to the nearest $0.10. Currently, some fees are charged on a per unit basis and others are charged on a per hour basis. FGIS will continue to provide costs based on a per hour and per unit basis to maintain consistency.

The formulas used to determine hourly rates are as follows:

Regular rate —The total direct pay of FGIS personnel performing grading, weighing, laboratory services, and equipment testing divided by the total direct hours for the previous year, which is then multiplied by the next year's percentage of cost-of-living increase, plus the benefits rate, plus the operating rate, plus the allowance for bad debt rate. If applicable, travel expenses will be added to the cost of providing the service through the operating rate or the travel will be billed separately. An example of the calculation will look like this: [Total direct pay divided by total direct hours ($2,663,407/82,985) = $32.10, multiplied by 1.7% (cost-of-living increase) = $32.64, + $10.04 (benefits rate) + $28.90 (operating rate) + $0.01 (bad debt allowance rate) = $71.59 (rounded to $71.60); rounding is done to the nearest $0.10.]

Overtime Rate —The total direct pay of FGIS personnel performing grading, weighing, laboratory services, and equipment testing divided by the total direct hours, which is then multiplied by the next year's percentage of cost-of-living increase and then multiplied by 1.5, plus the benefits rate, plus the operating rate, plus the allowance for bad debt rate. If applicable, travel expenses will be added to the cost of providing the service through the operating rate or the travel will be billed separately. An example of the calculation will look like this: [Total direct pay divided by total direct hours ($2,663,407/82,985) = $32.10, multiplied by 1.7% (cost-of-living increase) = $32.64, multiplied by 1.5 (overtime rate) = $48.96 + $10.04 (benefits rate) + 28.90 (operating rate) + $0.01 (bad debt allowance rate) = $87.91 (rounded to $87.90); rounding is done to the nearest $0.10.]

Holiday Rate —The total direct pay of FGIS personnel performing grading, weighing, laboratory services, and equipment testing divided by the total direct hours, which is then multiplied by the next year's percentage of cost-of-living increase and then multiplied by 2, plus the benefits rate, plus the operating rate, plus the allowance for bad debt rate. If applicable, travel expenses will be added to the cost of providing the service through the operating rate or the travel will be billed separately. An example of the calculation will look like this: [Total direct pay divided by total direct hours ($2,663,407/82,985) = $32.10, multiplied by 1.7% (cost-of-living increase) = $32.64, multiplied by 2 (double time or Holiday rate) = $65.28, + $10.04 (benefits rate) + $28.90 (operating rate) + $0.01 (bad debt allowance rate) = $104.23 (rounded to $104.20); rounding is done to the nearest $0.10.]

Formula calculations are based on the prior fiscal year's actual costs or historical costs, workload data, projection of expenses impacting program costs, cost-of-living increases, and inflation. Cost-of-living increases and inflation factors are based on the economic assumptions from the Office of Management and Budget (OMB). Rather than codify a reference to an OMB budget document in this rule, each year AMS intends to use the most recent economic factors released by OMB for budget development purposes to determine cost impacts for these user fee activities.

FGIS derived the components of the formulas above using the previous fiscal year's actual costs, as follows:

Benefits rate —The total direct benefits costs of FGIS personnel performing grading, weighing, laboratory services, and equipment testing divided by the total hours worked (regular, overtime, and holiday), which is then multiplied by the next calendar year's percentage cost-of-living increase. An example of the calculation will look like this: [Total direct benefits costs/(total regular hours + total overtime hours + total holiday hours) ($819,207/82,985)] = $9.87, multiplied by 1.7% (Cost of Living) = $10.04.]

Operating Rate —The total operating costs (including user fee adjustment) of FGIS personnel performing grading, weighing, laboratory services, and equipment testing divided by total hours worked (regular, overtime, and holiday), which is then multiplied by the percentage of inflation. The Operating Rate will include the adjustment for user fee reserve as an Operating Cost. For the purposes of this example, FGIS will call out the reserve adjustment separately. This example will assume $1,000,000 is needed for the reserve and assume all other operating costs are $42,000,000, divided by 630,000 total hours. An example of the calculation will look like this: [Total operating costs/(total regular hours + total overtime hours + total holiday hours (($42,000,000 + 1,000,000)/630,000)] = $69.61, multiplied by 2% (inflation) = $69.62.]

Allowance for Bad Debt Rate —Total bad debt for grading, weighing, laboratory services, and equipment testing divided by total hours worked (regular, overtime, and holiday). An example of the calculation will look like this: [Total bad debt cost/(total regular hours + total overtime hours + total holiday hours) ($1,000/82,985) = $ 0.01.]

As noted above, the formulas reflect that the cost of providing services includes both direct and indirect costs. Direct costs include the cost of salaries, employee benefits, and if applicable, travel and some operating costs. Indirect costs include the cost of program and AMS activities supporting the services provided to the industry and are not covered by FGIS tonnage fees. For purposes of these formulas, indirect costs have been included as part of operating costs.

Tables 2-4 below set forth the revised fees for FGIS inspection and weighing services effective July 8, 2024, and until a final rule is issued. Fees were revised following the periodic review prescribed in the regulations to ensure cost recovery for official services performed by FGIS (specifically that revenue meets obligations for FY 2024) and rebuilding of the mandatory operating reserve.

On May 1, 2024, DOE published a final rule (Final Rule) that adopted energy performance standards for certain new Federal buildings and Federal buildings undergoing major renovations. The Final Rule adopted revisions to the energy performance standards at title 10 of the Code of Federal Regulations (“CFR”) parts 433 and 435. 89 FR 35384. Since publication of the Final Rule, DOE has identified errors in the regulatory text adopted by the Final Rule. Specifically, DOE incorrectly numbered subparagraphs in 10 CFR 433.200(c). DOE is issuing this correction to provide correct subparagraph numbers for 10 CFR 433.200(c) and to revise an internal citation. The corrections are described in the following paragraphs.

As published, the regulatory text in the Final Rule may lead to confusion regarding the application of certain paragraphs in 10 CFR 433.200(c) as two subsections are currently misidentified to fall under 10 CFR 433.200(c)(1)(ii), which applies to designs for new construction or major renovations of all Scope 1 fossil fuel using systems in certain Federal buildings that began during or after Fiscal Year 2030. Because this document would simply clarify the adopted regulatory text without making substantive changes to the energy performance standards adopted in Final Rule, the changes addressed in this document are technical in nature.

DOE has concluded that the determinations made pursuant to the various procedural requirements applicable to the Final Rule remain unchanged for these technical corrections to the regulatory text. These determinations are set forth in the Final Rule. 89 FR 35384, 35411-35415.

Pursuant to the Administrative Procedure Act, 5 U.S.C. 553(b), DOE finds that there is good cause to not issue a separate notice to solicit public comment on the technical corrections contained in this document. Issuing a separate notice to solicit public comment would be impracticable, unnecessary, and contrary to the public interest. As explained previously, the corrections in this document do not affect the substance of or any of the conclusions reached in support of the Final Rule. Additionally, given the Final Rule is a product of an extensive administrative record with numerous opportunities for public comment, DOE finds additional comment on the technical corrections is unnecessary. Therefore, providing prior notice and an opportunity for public comment on correcting objective errors that do not change the substance of the proposed energy performance standards serve no useful purpose.

In the FR Doc. 2024-08196 appearing on page 35384 in the Federal Register of Wednesday, May 1, 2024, the following corrections are made:

This document of the Department of Energy was signed on May 24, 2024, by Mary Sotos, the Director of the Federal Energy Management Program, 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 .

In order to be awarded a Service-Disabled Veteran-Owned Small Businesses (SDVOSB) set-aside or sole source contract, firms must be certified by SBA through the Veteran Small Business Certification (VetCert) Program. Currently, firms that do not seek SDVOSB set-aside or sole source contracts but that meet the VetCert Program eligibility requirements may self-certify their SDVOSB status, receive prime contract or subcontract awards that are not SDVOSB set-aside or sole source contracts, and be counted toward an agency's SDVOSB small business goals or a prime contractor's subcontracting goal for SDVOSB awards.

Section 864 of the National Defense Authorization Act for Fiscal Year 2024 (Pub. L. 118-31) (December 22, 2023) amends the SDVOSB requirements so that, effective October 1, 2024, each prime contract award and subcontract award counted for the purpose of meeting the goals for participation by SDVOSBs in procurement contracts for Federal agencies or Federal prime contractors shall be entered into with firms certified by VetCert under section 36 of the Small Business Act (15 U.S.C. 657f). Section 864 also creates a grace period so that firms that file an application for certification with SBA by December 22, 2024, may continue to self-certify for such Federal Government contracts and subcontracts until SBA makes a final decision. SDVOSBs that do not file an application for certification with SBA by December 22, 2024, or are not certified by SBA's VetCert program and do not file an application by the deadline, will not be eligible to self-certify for such Federal Government contracts or subcontracts after December 22, 2024. NDAA 2024 requires SBA to promulgate regulations implementing this change within 180 days of enactment.

With this direct final rule, SBA amends the introductory sentence of 13 CFR 125.3(a) to require SDVOSB certification for subcontracting assistance. This rule also corrects the existing text to remove “certified” from “certified small business concerns owned and controlled by socially and economically disadvantaged individuals.” The Small Disadvantaged Businesses designation is self-certification and “certified” was included in error. To implement the statutory language of section 864 of the NDAA 2024, SBA is amending parts 125 and 128 of its regulations to eliminate self-certification in the VetCert program for SDVOSB concerns seeking a Federal Government contract or subcontract that will count towards an agency's SDVOSB goals or a prime contractor's SDVOSB subcontracting goals.

In general, SBA publishes a rule for public comment before issuing a final rule in accordance with the Administrative Procedure Act. 5 U.S.C. 553. The Administrative Procedure Act provides an exception to this standard rulemaking process, however, where an agency finds good cause to adopt a rule without prior public participation. 5 U.S.C. 553(b)(B). The good cause requirement is satisfied when prior public participation is impracticable, unnecessary, or contrary to the public interest.

SBA is publishing this rule as a direct final rule because public participation is unnecessary. SBA views this as a non-controversial administrative action that is limited to implementing the provisions of NDAA 2024 eliminating self-certification for SDVOSBs. These provisions are mandated by statute, and SBA does not have the authority to alter them in response to comment. Additionally, a 60-day notice and comment period would jeopardize SBA's obligation to meet section 864's deadline to promulgate regulations within 180 days of enactment.

This rule will be effective on the date shown in the DATES section unless SBA receives significant adverse comment on or before the deadline for comments. Significant adverse comments are comments that provide strong justifications for why the rule should not be adopted or for changing the rule. SBA does not expect to receive any significant adverse comments because it is adopting mandatory statutory changes. If SBA receives any significant adverse comments, it will publish a document in the Federal Register withdrawing this rule before the effective date. If SBA receives no significant adverse comments, the rule will be effective 60 days after publication without further notice.

As such, this rule is being implemented as a direct final rule.

The Office of Management and Budget (OMB) has determined that this direct final rule is not a significant regulatory action for the purposes of Executive Order 12866. This direct final rule implements specific statutory provisions in section 864 of the NDAA 2024.

Under the existing system, the burden of SDVOSB compliance for goaling purposes is placed upon the awarding contracting officer. Under this direct final rule, this burden is placed upon SBA. The contracting officer's responsibilities would be reduced to confirming that the applying firm is, in fact, a certified SDVOSB in SBA's certification database. This reduced responsibility to verify eligibility at contract award may result in a minor cost savings to the contracting agencies.

While current participants in the VetCert Program would have no additional costs associated with this direct final rule, SBA anticipates costs associated with self-certified SDVOSBs currently seeking prime contracts or subcontracting with the Federal Government. SBA estimates that as many as 20,408 self-certified SDVOSBs could apply for certification. To obtain this estimate, SBA reviewed firms actively registered as SDVOSBs in SAM but not already certified by VetCert. SBA believes that the number of firms listed in SAM is the most recent and reliable data to estimate participation and total costs for the purposes of this regulatory impact study. While it is not anticipated that every firm self-certified in SAM will apply for certification, SAM self-certification serves as what SBA would consider the maximum number of firms that would likely seek certification. SBA anticipates that only 70% of those firms will apply for certification, or 14,285 firms.

SBA estimates that an applicant's cost burden to apply for eligibility for this program would require 2 total hours at a cost burden of $250.96 per applicant. Hourly cost to the participant is based on the estimated manager's salary of $125.48/hour (based on the median hourly wage of $62.74 for construction managers, according to the BLS 2023 Occupational Outlook Handbook, plus 100% for benefits and overhead). Based on an estimate of 2 hours to complete an application and an hourly cost of $125.48, the initial total cost burden will be $3,584,963. Applicants would be required to apply for recertification at the end of the three-year eligibility period. SBA estimates that applicants will incur an additional 1 hour or $125.48 to complete recertification. Assuming all firms that apply for initial certification also apply for recertification at the end of each three-year eligibility period, the total cost burden would increase by $1,792,481 every three years. SBA does not expect that all firms will recertify but includes this estimate as an abundance of caution.

This regulation benefits the SDVOSB community by reducing the ambiguity and uncertainty for contracting officers in the process of Federal contract goaling and subcontracting that previously relied on self-certification. As SBA is implementing statutorily mandated requirements, there are no alternatives to this rulemaking.

Executive Order 13563, Improving Regulation and Regulatory Review (January 18, 2011), requires agencies to adopt regulations through a process that involves public participation, and to the extent feasible, base regulations on the open exchange of information and perspectives from affected stakeholders and the public as a whole. SBA has developed this rule in a manner consistent with these requirements, and the public will have the opportunity to provide comments following the publication of this rule.

This direct final rule meets applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. The action does not have retroactive or preemptive effect.

This direct final rule does not have federalism implications as defined in Executive Order 13132. It will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in the Executive order. As such it does not warrant the preparation of a federalism assessment.

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

Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996, also known as the Congressional Review Act, 5 U.S.C. 801 et seq., provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. SBA will submit a report containing this rulemaking and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States. This rulemaking has been reviewed and determined not to meet the criteria set forth in 5 U.S.C. 804(2).

To carry out its statutory mandate to certify SDVOSB firms, SBA collects information from SDVOSB applicants or participants through an online application system. This collection of information will require submission or retention of documents that support the applicant's certification and continued eligibility.

As discussed above, this direct final rule will implement the statutory requirement for small business concerns to be certified by SBA in order to be counted toward an agency's or prime contractor's goal for SDVOSB awards. As a result of these changes, the direct final rule eliminates SDVOSB self-certification. SBA anticipates that these changes will impact self-certified firms; however, SBA believes that this impact will be minimal as the information to be collected is already held by applicants during the ordinary course of business, was previously required for self-certification, and would require minimum preparation prior to submission. SBA will seek approval of this updated information collection separately from this rulemaking.

The Regulatory Flexibility Act (RFA), 5 U.S.C. 601, requires administrative agencies to consider the effect of their actions on small entities, small nonprofit enterprises, and small local governments. Pursuant to the RFA, when an agency issues a rulemaking, the agency must prepare a regulatory flexibility analysis which describes the impact of the rule on small entities. However, the RFA requires such analysis only where notice and comment rulemaking is required. As discussed above, SBA has found good cause that notice and public comment are impracticable, unnecessary, or contrary to the public interest. Accordingly, SBA is not required to conduct a regulatory flexibility analysis and is publishing this rule as a direct final rule without advance notice and public comment to implement NDAA 2024.

Accordingly, for the reasons stated in the preamble, SBA amends 13 CFR parts 125 and 128 as follows:

The FAA published a final rule in the Federal Register (89 FR 31605; April 25, 2024), establishing RNAV Routes T-480, T-482, and T-488, and amending RNAV Routes Q-140, T-206, T-258, T-287, T-295, and T-398 in the eastern United States. Subsequent to publication, the FAA determined that the DOGWD, VA; LOUIE, MD; and RTBRO, NC, route points were identified as Fixes, in error. This rule corrects that error by changing all references to these three route points to be listed as a waypoint (WP). This is an editorial change only to match the FAA's aeronautical database information and does not alter the alignment of the affected RNAV Routes, T-295, T-480, and T-488.

Additionally, the FAA decided to postpone some of the proposed airway changes to RNAV Route T-295. The segments between the Lancaster, PA (LRP), Very High Frequency Omnidirectional Range/Distance Measuring Equipment (VOR/DME) and the LAAYK, PA, Fix are being retained.

Accordingly, pursuant to the authority delegated to me, Establishment and Amendment of United States Area Navigation (RNAV) Routes; Eastern United States published in the Federal Register on April 25, 2024 (89 FR 31605), FR Doc. 2024-08665, is corrected 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 the 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 modifies the National Airspace System as necessary to preserve the safe and efficient flow of air traffic.

The Manchester, NH (MHT), VOR/DME is one of the candidate VORs identified for discontinuance by the FAA's VOR Minimum Operational Network (MON) program and listed in the final policy statement notice, “Provision of Navigation Services for the Next Generation Air Transportation System (NextGen) Transition to Performance-Based Navigation (PBN) (Plan for Establishing a VOR Minimum Operational Network),” published in the Federal Register on July 26, 2016 (81 FR 48694), Docket No. FAA-2011-1082. The FAA is planning to decommission only the VOR portion of the Manchester VOR/DME in September 2024.

The Manchester Regional Boston Airport, NH, Class C airspace area description uses the Manchester VOR/DME to describe the northern shelf boundary of the Class C airspace. To retain the accuracy of the Manchester Regional Boston Airport Class C airspace area, the FAA is removing reference to the Manchester VOR/DME in the northern shelf description and replace it with bearings and distances from the Manchester Boston Regional Airport, ARP.

Class C airspace designations are published in paragraph 4000 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 making editorial changes to the Manchester Regional Boston Airport, NH, Class C airspace description. This action removes references to the Manchester VOR/DME in northern shelf boundary of the Class C airspace and replaces it with bearings and distances from the Manchester Boston Regional Airport, ARP. The Class C airspace boundaries affected by the Manchester VOR/DME will remain unchanged and unaffected by replacing the Manchester VOR/DME references with bearings and distances from the Manchester Boston Regional Airport, ARP.

Additionally, in the description of the ARP for the Boire Field Airport, NH, the city name is removed from the fourth line in the text header leaving just the airport name and state which align with the current formatting standard.

Since this action merely involves minor editorial amendments in the Manchester, NH, Class C airspace area description and does not change the charted boundaries, altitudes, ATC procedures, or operating requirements for the Class C airspace area, notice and public procedure under 5 U.S.C. § 553(b) are unnecessary and contrary to the public interest.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that 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 amending the Manchester Regional Boston Airport, NH, Class C airspace description, qualifies for categorical exclusion under the National Environmental Policy Act (42 U.S.C. 4321 et seq. ) and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points). As such, this action is not expected to result in any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. Accordingly, the FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.

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

The National Marine Sanctuaries Act (NMSA; 16 U.S.C. 1431 et seq. ) authorizes the Secretary of Commerce (Secretary) to designate and protect as national marine sanctuaries areas of the marine environment that are of special national significance due to their conservation, recreational, ecological, historical, scientific, cultural, archaeological, educational, or esthetic qualities. Day-to-day management of national marine sanctuaries has been delegated by the Secretary to NOAA's Office of National Marine Sanctuaries (ONMS). The primary objective of the NMSA is to protect the resources of the National Marine Sanctuary System.

NOAA is designating the Lake Ontario National Marine Sanctuary (LONMS) in eastern Lake Ontario to recognize the national significance of the area's historical, archaeological, and cultural resources and to manage this special place as part of the National Marine Sanctuary System. To designate a national marine sanctuary, NOAA will set a boundary to delineate the borders of the sanctuary; run the site as a part of the National Marine Sanctuary System under the National Marine Sanctuaries Act; establish site-specific regulations to protect underwater cultural and historical resources; and implement a management plan that provides a comprehensive, long-term plan to manage the sanctuary and interpret the significance of the resources and surrounding area to the public. The sanctuary boundary encompasses 1,300 nmi 2 (1,722 mi 2 ) of eastern Lake Ontario waters and borders Wayne, Cayuga, Oswego, and Jefferson counties. NOAA will co-manage LONMS with New York State.

Eastern Lake Ontario is one of the most historically significant regions in the Great Lakes and the country. Approximately 1,000 years ago, the distinct cultural groups living along the lake shoreline had unified as the Haudenosaunee Confederacy. Portions of the original homelands of the Onondaga Nation, Cayuga Nation, Seneca Nation, and Oneida Nation lie within the boundaries of the sanctuary. This region has been critical to maritime trade for centuries, and it also represents a diverse array of important events in our Nation's history from military conflicts, maritime innovation, and American expansion to the west. During the colonial period, Lake Ontario was a strategic theater of conflict among European powers and the young American republic. Military actions occurred in the region during the French and Indian War, Revolutionary War, and the War of 1812. Later, this region was critical to the development of the American West and the Nation's industrial core. One of the more tangible and identifiable assets of this history were the vessels that plied Lake Ontario's waters. Carrying goods, people, and the community histories of the Great Lakes region, some of these vessels encountered treacherous conditions and sank. The cold, fresh water of the Great Lakes has preserved a number of these shipwrecks along with their historical and cultural context, making them a cornerstone for the protection, study, and interpretation offered by national marine sanctuaries.

LONMS contains 41 known shipwrecks and one known submerged aircraft, including one shipwreck ( St. Peter ) listed on the National Register of Historic Places and another listed as a New York State Submerged Cultural Preserve and Dive Site ( David Mills). This area may also include approximately 19 additional potential shipwreck sites (shipwrecks which may exist, but additional research is needed to verify and describe them); three aircraft; and several other underwater archaeological sites, such as remnants of piers, aids to navigation, historic middens, and historic properties that may be of religious and cultural significance to Indigenous Nations and Tribes. At this time, NOAA is unaware of any foreign sovereign shipwrecks located within the sanctuary boundary.

The exceptional archaeological, historical, and recreational value of these assets spans centuries, as demonstrated by the commercial schooner Washington that was built in 1797, and U.S. Coast Guard Cable Boat 56022, which was lost under tow in 1977. The sanctuary will also include early American commercial vessels, submerged battlefields from the Seven Years War and War of 1812 (at Oswego and Sackets Harbor, respectively), and stellar examples of innovative technologies in shipbuilding from the last two centuries.

The National Marine Sanctuaries Act (NMSA; 16 U.S.C. 1431 et seq. ) authorizes the Secretary of Commerce (Secretary) to designate new national marine sanctuaries to meet the purposes and policies of the NMSA, including:

• “to identify and designate as national marine sanctuaries areas of the marine environment which are of special national significance and to manage these areas as the National Marine Sanctuary System” (16 U.S.C. 1431(b)(1));

• “to provide authority for comprehensive and coordinated conservation and management of these marine areas, and activities affecting them, in a manner which complements existing regulatory authorities” (16 U.S.C. 1431(b)(2)); and

• “to facilitate to the extent compatible with the primary objective of resource protection, all public and private uses of the resources of these marine areas not prohibited pursuant to other authorities” (16 U.S.C. 1431(b)(6)).

The nationally significant underwater cultural and historical resources within the sanctuary require long-term protection and management to reduce threats that adversely affect their historical, cultural, archaeological, recreational, and educational value. For example, many of the shipwrecks in the sanctuary, which have a high level of structural integrity as a result of the preservative properties of the cold, fresh water of Lake Ontario and the great depth at which several of them lie, are threatened by both natural processes and human activities. These threats include wind, waves, currents, storms, and ice; invasive species such as zebra and quagga mussels, which currently cover many shipwrecks; anchors and grappling hooks from dive boats; poorly attached mooring lines; artifact removal; artifacts being moved within a shipwreck site; and entanglement from remotely operated vehicle tethers and fishing gear.

Accordingly, NOAA is designating this area as a national marine sanctuary to: (1) manage and protect nationally significant underwater cultural and historical resources through a regulatory and nonregulatory framework; (2) document, further locate, and monitor these resources; (3) provide interpretation of their cultural, historical, and educational value to the public; and (4) promote public stewardship and responsible use of these resources for their recreational value.

Establishing a national marine sanctuary in eastern Lake Ontario will: (a) allow NOAA to complement and supplement existing State and Federal efforts to protect underwater cultural and historical resources and actively manage, study, and interpret them for the public; (b) through outreach and communication, recognize and promote this area's nationally significant historical and cultural properties; (c) provide access to NOAA's extended network of scientific expertise and technological resources, enhance ongoing research, and provide an umbrella for the coordination of these activities; (d) create and build upon existing educational initiatives and provide programming and technology for students, teachers, and the general public across the country; (e) enhance and facilitate public stewardship of underwater cultural and historical resources; and (f) bolster broader lake conservation efforts and stimulate maritime heritage-related tourism in the many communities that have embraced their centuries-long relationship with Lake Ontario, the St. Lawrence River, the Great Lakes region, and the Nation.

On January 17, 2017, leaders of four New York counties (Oswego, Jefferson, Cayuga, and Wayne) and the City of Oswego, with support from the Governor of New York, submitted a nomination to NOAA through the Sanctuary Nomination Process (SNP) (79 FR 33851) asking NOAA to consider designating a national marine sanctuary in eastern Lake Ontario waters to protect, and increase awareness of, a nationally significant collection of submerged maritime heritage resources; build new partnerships for research and education; and promote tourism and economic development opportunities. NOAA completed its review of the nomination and, on March 21, 2017, added the area to the inventory of nominations eligible for designation. All nominations submitted to NOAA can be found at: https://nominate.noaa.gov/nominations/. NOAA's decision to initiate a designation is based on a number of factors, including the need for resource protection, community and stakeholder support, and agency capacity. NOAA chose to move forward with designating LONMS because its designation would advance the goals of the National Marine Sanctuaries Act and increase the diversity of national marine sanctuary sites by including historical and cultural resources not represented elsewhere in the National Marine Sanctuary System. NOAA also considered the excellent condition of the resources located within the nominated area.

On April 17, 2019, NOAA began the sanctuary designation process for LONMS by publishing a notice of intent (84 FR 16004, April 17, 2019) to prepare a draft environmental impact statement (DEIS) and to initiate the public scoping process as required by the National Marine Sanctuaries Act (NMSA) and the National Environmental Policy Act (NEPA). The notice of intent also announced NOAA's intent to fulfill its responsibilities under the National Historic Preservation Act (NHPA).

NOAA established a Sanctuary Advisory Council in 2020 to bring members of the local community together to provide advice to NOAA, to serve as a liaison with the nominating community, and to assist in guiding NOAA through the designation process. The council consists of 15 members in the following seats: citizens-at-large, divers/dive clubs/shipwreck explorers, maritime history, education, tourism, economic development, recreational fishing, and shoreline property owners. In addition, representatives of the four counties, the city of Oswego, the U.S. Coast Guard, the Port of Oswego Authority, New York Sea Grant, and New York State are non-voting members.

In accordance with NEPA (42 U.S.C. 4321 et seq. ) and the NMSA (16 U.S.C. 1434), NOAA published a DEIS and draft management plan for the national marine sanctuary designation on July 7, 2021 (86 FR 35757). The DEIS ( https://nmssanctuaries.blob.core.windows.net/sanctuaries-prod/media/docs/20210701-proposed-lake-ontario-national-marine-sanctuary-draft-environmental-impact-statement.pdf ) described the purpose and need for the proposed action, identified a range of alternatives, evaluated the environmental consequences of the proposed designation of a national marine sanctuary, and provided an assessment of resources and uses in the area. NOAA included three alternatives in the DEIS: (1) a “no action” alternative where the area would not become a national marine sanctuary; (2) an alternative that would include 1,349 nm 2 (1,786 mi 2 ) in eastern Lake Ontario and the Thousand Islands region of the St. Lawrence River; and (3) an alternative that would include 1,300 nmi 2 (1,724 mi 2 ) in eastern Lake Ontario without the St. Lawrence River. The DEIS also described proposed regulatory concepts and non-regulatory management actions outlined in the draft management plan to identify the tools employed by NOAA to manage the sanctuary, such as research and monitoring, education and outreach, tourism and economic development, sanctuary resource protection, and sanctuary operations. NOAA did not select a preferred alternative in the DEIS.

During the public comment period on the DEIS and draft management plan, NOAA held four virtual public meetings. NOAA received 87 separate comments either through www.regulations.gov, by mail, or during the virtual public meetings. All comments on the DEIS are available at the Regulations.gov website. 1 NOAA's response to the public comments is set forth in Section IV of this document and Appendix E of the final environmental impact statement, which was made available to the public on April 19, 2024 (89 FR 28771).

On January 19, 2023, NOAA published a notice of proposed rulemaking (NPRM) for the sanctuary designation of approximately 1,302 nmi 2 (1,724 mi 2 ) of eastern Lake Ontario waters (88 FR 3334). NOAA solicited public comment on the proposed rule from January 19, 2023 to March 20, 2023. NOAA accepted comments in the form of letters and written comments through electronic submissions to http://regulations.gov, letters submitted by mail, and both in-person and virtual public hearings. NOAA received 96 comments during the public comment period on the NPRM. All public comments on the proposed designation are available at https://www.regulations.gov/document/NOAA-NOS-2021-0050-0077. NOAA's response to the public comments is set forth in Section IV of this document and Appendix E of the final environmental impact statement, which was made available to the public on April 19, 2024 (89 FR 28771).

Based on public comments received between January and March 2023, internal deliberations, interagency consultations, meetings with constituent groups, and evaluation of this input with the State of New York, NOAA has made the following changes to the proposed rule and corresponding changes to the FEIS and management plan.

In response to public comments and discussions with New York State, NOAA modified the sanctuary area from 1,724 square miles to 1,722 square miles. The final boundary includes 41 known shipwrecks and one known submerged aircraft; approximately 19 additional potential shipwreck sites; three aircraft; and several other underwater archaeological sites, such as remnants of piers, aids to navigation, and historic properties that may be of religious and cultural significance to Indigenous Nations and Tribes. Specific changes include: revising the known shipwreck number from 43 to 41 due to removing the wreck of the Congercoal, which NOAA has been advised is outside of the sanctuary boundary, and the wreck of the Jefferson, which is on private property; revising the potential shipwreck site count from 20 to 19 due to the positive identification of the schooner Napoleon; moving the eastern edge of the boundary from the Town of Cape Vincent to Tibbetts Point Lighthouse to ensure that no portion of the St. Lawrence River is included within the sanctuary; amending the boundary coordinates and preamble language to clarify that East Bay, Port Bay, Blind Sodus Bay, North Pond, South Colwell Pond, Goose Pond, Floodwood Pond, and Black Pond are not included within the boundaries of the sanctuary; updating the name from “Great Sodus” to “Sodus Bay” and “Little Sodus” to “Little Sodus Bay” in the list of ports and harbors excluded from the sanctuary; adding language to the description of the Low Water Datum and the 1985 International Great Lakes Datum to clarify that the boundary will reflect any updates to either datum made in the future.

As explained above in the DATES section of this document, NOAA postpones the effective date for the prohibition on grappling into or anchoring on shipwreck sites until July 21, 2026. The purpose of this postponement is to provide NOAA with adequate time to develop a shipwreck mooring program plan, seek input from the dive community about the mooring buoy plan, begin installing mooring buoys, and develop best practices for accessing shipwrecks when mooring buoys are not present. All other regulations will become effective as described in the DATES section above, including the prohibition on altering, destroying, or otherwise injuring any sanctuary resource (including shipwrecks) under 15 CFR 922.223(a)(1). It also continues to be a violation of State law to damage shipwrecks, including damage from anchoring or grappling.

NOAA amended the term in section 922.227 from “federally-recognized Indian Tribes” to “federally-recognized Nations and Tribes” as a result of consultation with the Onondaga Nation, which uses the term “Nation” to reflect their sovereignty. The United States recognized Onondaga as a nation, and as a treaty partner, in its three treaties with the Six Nations in the late 18th century. NOAA does not intend to change the meaning of section 922.227 with this terminology change. Consistent with NOAA's definition of “Indian tribe” at 15 CFR 922.11, the term “federally-recognized Nations and Tribes” in section 922.227 is intended to refer to an Indian or Alaska Native tribe, band, nation, pueblo, village, or community that the Secretary of the Interior acknowledges to exist as an Indian tribe pursuant to the Federally Recognized Indian Tribe List Act of 1994, 25 U.S.C. 5130.

NOAA has added new text to Section 922.222 (Co-Management) regarding the Sunken Military Craft Act acknowledging that sunken military craft in LONMS will continue to be administered by the respective Secretary concerned pursuant to the Sunken Military Craft Act. NOAA will enter into a Memorandum of Agreement with the appropriate agencies regarding collaboration on implementing the Sunken Military Craft Act. See Section V.I. for more information.

In addition to the changes discussed above, NOAA has made technical edits throughout this final rule. The majority of these technical edits are necessary to conform with revisions to 15 CFR part 922 that became effective on April 7, 2023 (88 FR 19824), after the proposed rule for LONMS was published in the Federal Register .

These technical edits are not substantive.

NOAA has also made two non-substantive changes to the terms of designation that were included in the proposed rule. First, NOAA has removed a sentence from Article IV, Section 1, because it was duplicative of the statement in Article V that the terms of designation may be modified only by the same procedures by which the original designation was made, consistent with Section 304(a)(4) of the NMSA. Second, NOAA has added “Interfering with an investigation in connection with enforcement of the NMSA” to the list of activities subject to regulation in Article IV of the terms of designation to reflect the full scope of activities that are prohibited or otherwise regulated under 15 CFR 922.223(a).

NOAA is amending 15 CFR part 922 by adding a new subpart (subpart U) that contains site-specific regulations for the sanctuary. This subpart will include the boundary, contain definitions of common terms used in the new subpart, provide a framework for co-management of the sanctuary, identify prohibited activities and exceptions, and establish procedures for certification of existing uses, permitting otherwise prohibited activities, and emergency regulation procedures.

NOAA has decided to name the sanctuary “Lake Ontario National Marine Sanctuary” as originally proposed. NOAA sought public comment on potential names for the sanctuary at each stage of the designation. This decision was based on public comment, on input from the Lake Ontario Sanctuary Advisory Council, and consultation with New York State, Indigenous Nations and Tribes, and local governments.

NOAA designates 1,300 nmi 2 (1,722 mi 2 ) of eastern Lake Ontario waters, which border Wayne, Cayuga, Oswego, and Jefferson counties, as Lake Ontario National Marine Sanctuary. The shoreline sanctuary boundary is set at the Low Water Datum (LWD) as defined by the International Great Lakes Datum (IGLD). The LWD is determined by the U.S. Army Corps of Engineers and is the chart datum to which soundings are referenced for NOAA charts in the Great Lakes. The LWD is also well understood internationally because it is a fixed datum for each lake. New York State uses the LWD as the line that delineates public land ownership. The sanctuary boundary will automatically incorporate any changes to the shoreline as defined by the LWD when the datum is updated in the future.

NOAA sets the northern boundary approximately along the U.S. and Canadian border in both Lake Ontario and the entrance to the St. Lawrence River. The western sanctuary boundary is set approximately along the western border of Wayne County. The eastern boundary is a line near the entrance to the St. Lawrence River from approximately the international border between the United States and Canada near Wolfe Island, ON, to the shoreline near Tibbetts Point Lighthouse to the southwest of the town of Cape Vincent, NY. The remainder of the eastern sanctuary boundary, as well as the southern boundary, follows the shoreline around eastern Lake Ontario.

To ensure compatible use with commercial shipping and other activities, NOAA excludes the ports and harbors of Oswego, Pultneyville, Little Sodus Bay, Sodus Bay, and Port Ontario from the sanctuary. NOAA excludes the Federal navigation channel approaches to these harbors, as well as Federal anchorage areas to avoid unintended effects on port operations critical to the local, regional, and national economies. NOAA also excludes privately owned bottomlands from the sanctuary. NOAA is including Sackets Harbor in the sanctuary because of the possible presence of underwater cultural and historical resources at that location.

The boundary of LONMS cuts across the mouths of rivers, streams, creeks, and ponds as it continues along the coastline of the sanctuary, which excludes those water bodies from the sanctuary. This is the case for East Bay, Port Bay, Blind Sodus Bay, North Pond, South Colwell Pond, Goose Pond, Floodwood Pond, and Black Pond. Therefore, these bays and their channels to the lake will not be included within the boundaries of the sanctuary.

NOAA is including a site-specific definition of “sanctuary resource” for LONMS, to include only the historical resources found in this area in accordance with the purpose of this designation. The definition does not include biological and ecological resources of the area. Creating this site-specific definition requires NOAA to modify the national definition of “sanctuary resource” in the national regulations at section 922.11 to add an additional sentence that defines the site-specific definition for the sanctuary at section 922.221. This is similar to the approach taken for other national marine sanctuaries, such as Thunder Bay National Marine Sanctuary, that do not use the full national “sanctuary resource” definition. NOAA defines “sanctuary resource” for the purposes of LONMS to mean all historical resources as defined at 15 CFR 922.11, which includes any pre-contact and historic sites, structures, districts, objects, and shipwreck sites within sanctuary boundaries.

NOAA further defines “shipwreck site” for the purposes of LONMS to mean all archaeological and material remains associated with sunken watercraft or aircraft that are historical resources, including associated components, cargo, contents, artifacts, or debris fields that may be exposed or buried within the lake bed.

NOAA also defines “tethered underwater mobile system” for the purposes of LONMS to mean remotely operated vehicles and other systems with onboard propulsion systems that utilize a tether connected to a station-holding ( e.g. by anchor, dynamic positioning, or manual vessel operation) surface support vessel.

To enhance opportunities and build on existing protections, NOAA and New York State will collaboratively manage the sanctuary. NOAA establishes the framework for co-management in section 922.222 and will develop a Memorandum of Agreement (MOA) with the State to establish further details of co-management. NOAA and the State may develop additional agreements as necessary that would provide details on the execution of sanctuary management, such as activities, programs, and permitting programs, that can also be updated to adapt to changing conditions or threats to the sanctuary resources. Any proposed changes to sanctuary regulations or boundaries will be jointly coordinated with the State and subject to public review as mandated by the NMSA and other Federal statutes.

Sunken military craft in LONMS will continue to be administered by the respective Secretary concerned pursuant to the Sunken Military Craft Act. NOAA will develop an MOA with the appropriate agencies regarding collaboration on implementing the Sunken Military Craft Act. The ONMS Director will request approval from the respective Secretary concerned for any terms and conditions of ONMS authorizations that may involve sunken military craft in LONMS.

Additionally, NOAA recognizes that designation of a national marine sanctuary will lead to subsequent activities that may be subject to review under section 106 of the National Historic Preservation Act. Therefore, NOAA is pursuing execution of a Programmatic Agreement (PA) pursuant to 36 CFR 800.14(b). The PA would provide a framework for consideration of future undertakings resulting from management of the sanctuary. NOAA is developing this agreement in consultation with the New York State Historic Preservation Officer, the Advisory Council on Historic Preservation, federally-recognized Nations and Tribes, and other consulting parties.

NOAA will supplement and complement existing management of this area by implementing the following regulations in section 922.223 to protect sanctuary resources.

As a complement to existing protections under State laws and Federal laws, the regulations for LONMS prohibit moving, removing, recovering, altering, destroying, possessing or otherwise injuring, or attempting to move, remove, recover, alter, destroy, possess or otherwise injure a sanctuary resource. This prohibition aims to reduce the risk of direct harm to sanctuary resources. The terms “moving” and “altering” include any changes to the position or state of sanctuary resources, as well as covering, uncovering, moving, or taking sanctuary resources, even if the resources are not located on or near a shipwreck. This sanctuary prohibition will supplement section 233 of the New York State Education Law which makes it unlawful for any person to “investigate, excavate, remove, injure, appropriate or destroy any object of archaeological, historical, cultural, social, scientific or paleontological interest situated on, in or under lands owned by the State of New York without written permission of the commissioner of education.” NY Educ L § 233.4. This State regulation currently applies in U.S. waters of Lake Ontario and will continue to apply to such objects in these waters.

This prohibition is intended to deter looting of sanctuary resources and to further the policy of in situ preservation of these resources. As noted, the listed activities will be prohibited both within and outside of the sanctuary. This prohibition does not apply to artifacts or other historical resources collected before the effective date of sanctuary designation.

The regulations for LONMS prohibit the use of grappling hooks and anchoring devices into or on shipwreck sites, to protect fragile shipwrecks and aircraft within the sanctuary from damage. To help vessels avoid anchoring on known shipwrecks sites, NOAA intends to publish known shipwreck site coordinates on the LONMS website ( https://sanctuaries.noaa.gov/lake-ontario ). However, in accordance with section 304 of the National Historic Preservation Act, NOAA would withhold from public disclosure information about the location, character, or ownership of a historic property if NOAA, in consultation with the Secretary of the Interior, determined that disclosure may risk harm to the historic property. NOAA will also coordinate with the New York State Historic Preservation Officer in making such a determination. Shipwreck sites for which NOAA does not publish coordinates remain, nevertheless, as sanctuary resources, and this prohibition on grappling into or anchoring on shipwreck sites will still apply. The management plan includes surveying the sanctuary area to identify additional shipwreck sites. As appropriate, and in consideration of resource management conflicts, NOAA intends to update its website as new shipwreck sites are found by the sanctuary or other public or private groups and individuals. As NOAA seeks to promote public access while also ensuring sound resource protection, an initial focus of the sanctuary management plan will be the installation of mooring systems at select sanctuary shipwreck sites. Moorings provide a secure and convenient anchoring point for users, which eliminates the practice of grappling into a shipwreck to access the site. NOAA also intends to publish guidelines on best practices for anchoring near shipwreck sites to avoid injuring sanctuary resources. For example, NOAA intends to publish instructions for the public on how to use a weighted line and surface float at sites without moorings to mark a wreck for divers to descend and ascend. This weighted line would not be used as an anchoring line, and it would need to be continuously tended and then completely removed before the dive boat leaves the area.

NOAA is delaying the effective date for the prohibition on grappling into or anchoring on shipwreck sites for two years beyond the effective date of the sanctuary designation. The purpose of this delay is to provide NOAA with adequate time to develop a shipwreck mooring program in consultation with the dive community and State and Federal agencies; begin installing moorings at high priority shipwreck sites; and publish site plans and best practices for accessing shipwreck sites with and without moorings. All other regulatory provisions will become effective on the effective date of the sanctuary designation that is implemented by this final rule, including the prohibition on altering, destroying, or otherwise injuring any sanctuary resource (including shipwrecks) under 15 CFR 922.223(a)(1). It continues to be a violation of State law to damage shipwrecks, including damage from anchoring or grappling.

Tethered underwater mobile systems, such as remotely operated vehicles (ROVs), are widely used in underwater survey and site exploration activities, as they enable access to underwater cultural and historical resources at depths beyond recreational and technical diving limits. As tethered instrument use has continued to increase in the scientific, commercial, and recreational user communities, there is a heightened threat of damage to underwater cultural resources by these systems. Tethered systems present three distinct threats to shipwreck sites: intentional site disturbance, incidental site disturbance, and site pollution. Intentional disturbance includes the intentional recovery of sanctuary resources from a wreck site, which may range from minor alterations to large-scale recovery. Incidental disturbance occurs when, for example, a tethered system makes contact with the wreck or the instrument tether gets entangled on protruding portions of a wreck, such as the mast. Under these circumstances, disentanglement or attempted disentanglement of snagged instruments can displace or damage the wreck. The impact from such activities can result in severe damage to artifact assemblages and the structural integrity of a site. This risk is particularly concerning in LONMS, where a large number of wrecks have intact masts and high site integrity. Finally, if the instrument cannot be disentangled, cutting the tether line pollutes the site with abandoned equipment.

Therefore, the regulations for LONMS prohibit deploying a tethered underwater mobile system at shipwreck sites. The provision complements New York State's prohibition on damaging cultural resources by proactively deterring damage, disturbance, and pollution of these nationally significant sites from tethered systems. Because New York State does not proactively manage or protect shipwrecks in Lake Ontario, it also does not regulate the use of tethered systems at shipwreck sites, which, as described above, pose a threat to these resources. New York State's existing program focuses on permitting for terrestrial resources, rather than underwater cultural and historical resources. As a result, New York State has limited staff expertise regarding maritime archaeology that could inform whether an application for the permitted use of a tethered system is consistent with the preservation of these underwater cultural and historical resources.

The prohibition on operating tethered systems at shipwreck sites does not apply to any activity conducted in accordance with the scope, purpose, terms, and conditions of a permit issued by NOAA, including special use permits pursuant to section 310 of the NMSA. Users may apply for a permit to operate tethered underwater mobile systems at shipwreck sites within the sanctuary. NOAA will review project proposals against the permit criteria outlined in part 922, subpart D and the permit conditions specific to LONMS to determine whether permitting the proposed operation is consistent and compatible with the purposes of sanctuary designation.

Permits issued by New York State relative to the State prohibition are intended to serve the purposes of the New York State Museum by ensuring the appropriate acquisition of cultural and historical objects for the State Museum's archiving purposes. Permits issued by NOAA serve a distinct, yet complementary, purpose of ensuring the permitted activity is consistent and compatible with the purposes for which the sanctuary is designated. Furthermore, because NOAA's prohibition makes it unlawful for any person to deploy a tethered underwater mobile system at a shipwreck site without a NOAA permit, authorized officers can target and investigate the unauthorized use of such systems at shipwreck sites before harm occurs. By contrast, the existing New York prohibition is ambiguous in its application prior to direct injury to cultural resources, and this ambiguity could complicate and potentially compromise similar proactive enforcement measures relying on this provision of New York State law. For more information about NOAA permits please see section 8 below.

NOAA does not intend for this prohibition to apply to autonomous underwater vehicles or towed systems, such as side-scan sonar, magnetometers, survey trawls, or other survey instruments that are pulled behind a vessel via a tow cable. Towed systems are typically operated high above the lakebed to avoid snagging on objects, so they do not present the same level of entanglement threat to shipwrecks as tethered underwater mobile systems. However, should an autonomous underwater vehicle, towed system, or any similar operation alter, destroy, cause the loss of, or otherwise injure any sanctuary resource managed within LONMS, any and all responsible persons are still subject to civil liability under NMSA and its implementing regulations.

The regulations for LONMS prohibit interfering with sanctuary enforcement activities. This regulation will assist in NOAA's enforcement of the sanctuary regulations and strengthen sanctuary management.

The prohibitions for the sanctuary do not apply to any activity necessary to respond to emergencies that threaten lives, property, or the environment, or activities that are necessary for law enforcement purposes.

The regulations for LONMS include the authority for NOAA to issue emergency regulations in the sanctuary. Emergency regulations are used in limited cases and under specific conditions when there is an imminent risk to sanctuary resources and where a temporary prohibition would prevent the destruction or loss of those resources. An emergency regulation will not take effect without the approval of the Governor of New York or her/his designee or designated agency. NOAA may only issue emergency regulations that address an imminent risk for a fixed amount of time with a maximum of 6 months that can be extended one time for no more than 6 months. NOAA must go through a full rulemaking process to consider making an emergency regulation a permanent regulation, which would include a public comment period.

This final rule adds LONMS to the list of sanctuaries that have site-specific regulations related to emergency regulations at 922.7 and also includes detailed site-specific regulations regarding emergency regulations at section 922.224.

The exercise of treaty rights, reserved rights, or similar rights for federally-recognized Nations and Tribes, including the Haudenosaunee Confederacy, and their citizens is not modified, altered, or in any way affected by these regulations. The Director shall consult with the governing body of each Nation or Tribe protected by the 1794 Treaty of Canandaigua regarding any matter which might affect the ability of their citizens to participate in activities protected by this treaty in the sanctuary. Please see section III.E “Executive Order 13175” of this document for information about how NOAA has engaged with Nations and Tribes through the sanctuary designation process.

The regulations for LONMS include the authority for NOAA to issue permits to allow certain activities that would otherwise violate the prohibitions listed and described above. 2 Similar to other national marine sanctuaries, NOAA may issue general permits for the purposes of education, research, or management. In order for an activity to be considered for a general permit, it must also further the goals of the national marine sanctuary and meet regulatory permit review criteria. The Director may subject a general permit to specific terms and conditions as they deem appropriate. For example, a research institution may request to conduct limited archaeological testing at a shipwreck site that involves taking a sample for the purpose of dating the site. This activity would violate the prohibition on damaging or altering a sanctuary resource and would therefore require the issuance of a general permit to allow the activity for the purposes of education, research, or management. NOAA would evaluate the request and consider the inclusion of permit terms and conditions to ensure the activities are conducted by qualified professionals and to proper archaeological standards, as well as to further ensure that the activity is meeting the appropriate purpose of education, research, or management of the resource.

To address the above additions to the NOAA general permit authority for LONMS, NOAA amends the regulatory text in the program-wide regulations in part 922, subpart D, to add references to subpart U, as appropriate.

Pre-existing activities conducted pursuant to a valid lease, permit, license, or right of subsistence use or of access might be occurring within the LONMS area on the date of sanctuary designation that would otherwise be prohibited by sanctuary regulations. NOAA adds section 922.226, which describes the process by which it may certify a valid lease, permit, license, or right of subsistence use or of access within the sanctuary boundaries. In compliance with the NMSA, the regulations at section 922.226 state that certification is the process by which permitted activities existing prior to the designation of the sanctuary that violate sanctuary prohibitions may be allowed to continue. NOAA may, however, further regulate the exercise of those permitted activities consistent with the goals of the sanctuary by applying additional terms and conditions to the certification. Requests for certifying permitted existing uses must be received by NOAA within 90 days of the effective date of the designation.

The regulations for LONMS include the authority for NOAA to consider allowing an activity otherwise prohibited by section 922.223 within the sanctuary if such activity is specifically authorized by any valid Federal, State, or local lease, permit, license, approval, or other authorization issued after the effective date of sanctuary designation. NOAA also has the authority to add terms and conditions to authorizations to ensure that activities conducted within the sanctuary are carried out in a manner that is consistent with the purposes for which the sanctuary was designated. As such, NOAA amends the regulatory text at section 922.36 to add reference to subpart U.

NOAA has the authority under the NMSA to issue special use permits (SUPs) at national marine sanctuaries, as established by section 310 of the NMSA. SUPs can be used to authorize specific activities in a sanctuary if such authorization is necessary to establish conditions of access to, and use of, any sanctuary resource or to promote public use and understanding of a sanctuary resource. The NMSA requires SUPs to contain four specific conditions (16 U.S.C. 1441(c)): (1) activities must be compatible with the purposes for which the sanctuary is designated and with protection of sanctuary resources; (2) activities carried out under the permit must be conducted in a manner that does not destroy, cause the loss of, or injure sanctuary resources; (3) permittees are required to purchase and maintain comprehensive general liability insurance, or post an equivalent bond, against claims arising out of activities conducted under the permit and to agree to hold the United States harmless against such claims; and (4) SUPs shall not authorize the conduct of any activity for a period of more than 5 years unless renewed by the Secretary. As is the case with general permits, NOAA can place additional conditions on SUPs specific to the activity being permitted. The activities that qualify for a SUP are set forth in the Federal Register (78 FR 25957 (May 3, 2013); 82 FR 42298 (Sept.7, 2017)). Categories of SUPs may be changed or added to through public notice and comment.

NOAA is creating a new SUP category for “the operation of tethered underwater mobile systems at shipwreck sites in Lake Ontario National Marine Sanctuary” to apply when the proposed activity does not qualify for a general permit or authorization, as described above, and the proposed activity otherwise satisfies the requirements in the applicable sanctuary regulations and section 310 of the NMSA. 3 NOAA determined that after appropriate environmental review and application of terms and conditions, operating tethered underwater mobile systems at shipwreck sites can occur without injuring sanctuary resources. Upon receiving an SUP application, NOAA will coordinate with the New York State Historic Preservation Officer to consider terms and conditions that prevent harm to sanctuary resources. Such terms and conditions will generally address potential impacts such as tether management and entanglement mitigation, as well as avoidance of site pollution. While the NMSA allows NOAA to assess and collect fees for the conduct of any activity under an SUP, it also allows NOAA to waive or reduce fees for activities that do not derive profit from the access or use of sanctuary resources. NOAA will waive the associated fee for issuing an SUP for operating tethered underwater mobile systems at shipwreck sites within LONMS when non-commercial operators do not derive profits from their use of the sanctuary or when the operators further the sanctuary's objectives ( e.g., educating the public about the sanctuary or contributing to the sanctuary's research goals).

NOAA is amending the general regulations in part 922, subpart A and part 922 subpart D so that the regulations are accurate and up-to-date. The modified sections to conform to adding a new sanctuary are:

Section 304(a)(4) of the National Marine Sanctuaries Act (NMSA) requires that the terms of designation include the geographic area included within the sanctuary; the characteristics of the area that give it conservation, recreational, ecological, historical, research, educational, or aesthetic value; and the types of activities that will be subject to regulation by the Secretary of Commerce to protect these characteristics. Section 304(a)(4) also specifies that the terms of designation may be modified only by the same procedures by which the original designation was made.

With this rulemaking, NOAA establishes the terms of designation that describe the geographic area, resources, and activities as described in details above. NOAA will add the terms of designation language for LONMS as appendix B to the regulations at 15 CFR part 922, subpart U.

NOAA consolidated public comments from the DEIS and NPRM and collectively responds to those comments here and in Appendix E of the FEIS. For the purposes of managing responses to public comments, NOAA grouped similar comments by theme. These themes align with the content of the proposed rule and environmental impact statement that identified the purposes and needs for a national marine sanctuary, and the draft management plan that identified the proposed non-regulatory programs and sanctuary operations. They are summarized below, followed by NOAA's response.

1. Comment: Commenters cited several reasons for supporting sanctuary designation, including: long-term protection for nationally significant shipwrecks; increased accessibility to these shipwrecks; additional recreational opportunities; potential for national recognition of the area to support local tourism and economies; Federal resources to support research on shipwrecks; establishing a mooring program; and potential educational opportunities for students to study cultural and biological resources in the lake. Local, State, and governments and organizations also expressed strong support of the sanctuary, offering opportunities to partner for education, research, outreach, and other activities. New York State agencies expressed commitment to be key partners in co-management and implementation of the national marine sanctuary.

Response: NOAA agrees that these are some of the main benefits of designating LONMS. NOAA has considered these comments in writing the FEIS, management plan, and final rule. The management plan identifies actions to support these goals.

2. Comment: NOAA received comments that opposed designating a sanctuary, citing reasons including: enough State and Federal protections for sensitive historic underwater resources already exist; concern that there is not enough public interest in local shipwrecks; most of the wrecks have already been found by private explorers and, thus, NOAA research is not needed; and the level of economic development would not be high enough to justify the creation of a national marine sanctuary.

Response: NOAA determined that this action responds to the need to provide additional protection and management of nationally significant underwater cultural and historical resources in eastern Lake Ontario. NOAA determined the current jurisdictional regime does not provide comprehensive and effective management for the full range of activities that impact the underwater cultural and historical resources in the region. Chapter 2 of the FEIS describes the purpose and need for this sanctuary. The LONMS Management Plan describes a wide variety of activities that will be implemented if this is designated a national marine sanctuary.

3. Comment: Some commenters expressed conditional support for a sanctuary as long as legal fishing, hunting, and fur trapping activities are not limited by the sanctuary.

Response: NOAA's goal of establishing a national marine sanctuary in eastern Lake Ontario is to comprehensively manage the underwater cultural resources in the area. NOAA's regulations will not limit legal fishing, hunting, or fur trapping within the boundaries of the sanctuary, as long as those activities do not damage or disturb sanctuary resources.

4. Comment: NOAA received a few comments questioning why the sanctuary should be established if there are only a few diveable shipwrecks in the proposed boundaries.

Response: As demonstrated across the National Marine Sanctuary System, the public will benefit both from activities occurring within the LONMS and activities occurring on land. People will be able to enjoy the sanctuary through diving, kayaking, boating, and snorkeling, as well as through museums, interpretive displays, websites, formal and informal educational programs, enhanced tourism opportunities, multidisciplinary research opportunities, and other unique sanctuary-related partnerships and activities. The LONMS Management Plan outlines priorities in these areas for the first five years of the sanctuary's operation with the goal of providing benefits to a broad range of public uses and users.

5. Comment: NOAA received a few comments stating that Federal funding of a national marine sanctuary would be a waste of Federal funds.

Response: NOAA has determined this action responds to the need and opportunity to provide additional protection and management of nationally significant underwater cultural and historical resources in eastern Lake Ontario. NOAA has received consistent support for this sanctuary designation from the local communities and New York State. NOAA prepared a draft management plan with significant input from the Lake Ontario Sanctuary Advisory Council, who are local community members. NOAA describes the benefits of this sanctuary in Chapter 2 of the FEIS and will spend Federal funds prudently to accomplish the goals of the sanctuary.

6. Comment: NOAA received a comment questioning whether NOAA has the ability to enforce sanctuary regulations in such a large area.

Response: Law enforcement authorities within NOAA and the State of New York will coordinate to ensure that sanctuary regulations are enforced. NOAA and New York State intend to examine their existing joint enforcement agreement to consider opportunities for State personnel to assist in the enforcement of national marine sanctuary regulations. NOAA also intends to coordinate with the U.S. Coast Guard to ensure compliance with the NMSA and sanctuary regulations.

7. Comment: One commenter expressed concern about advertising the area to scuba divers when several of the wrecks in the sanctuary lie outside of recreational dive limits (over 130 feet of water). Commenters were also concerned about safety issues arising from increased diving activity in the St. Lawrence River if it was included in the sanctuary, due to the proximity of several of the wrecks to shipping channels.

Response: NOAA notes that it is safest for divers to only dive within the scope of an individual's personal training, experience, and comfort level. While it is true that a number of shipwrecks within the boundaries lie in over 130 feet of water and are only accessible to technical divers, there are also several sites that lie in shallower waters and are more easily accessible to recreational divers. The LONMS Management Plan includes actions that support these goals. NOAA will prioritize placing mooring buoys at these popular dive sites in the sanctuary to provide safer access to the wrecks, as well as to reduce ongoing impacts to those sites from visitor traffic (Strategy RP-1 in the LONMS Management Plan). NOAA does not plan on installing mooring buoys at all shipwreck sites, nor encouraging diving at all sites. When evaluating sites for mooring buoys, NOAA will consider the impact to the shipwreck, the safety conditions of accessing the site, the depth of the site, and the cost of installing and maintaining the buoy. NOAA will also publish shipwreck site plans to aid divers in planning their dives. NOAA has a strong track record of working with local dive shops to educate business owners and their clients about safe diving practices for both human safety and protection of dive sites. NOAA will also work with local emergency responders to ensure they are prepared for responding to dive emergencies. Finally, the LONMS boundaries will not include the St. Lawrence River.

8. Comment: NOAA received a comment expressing concern that improving access to shipwrecks for scuba divers would increase the degradation of the resources that NOAA is trying to protect.

Response: It is the responsibility of and highest priority for NOAA to protect the integrity of sanctuary resources. NOAA will utilize a range of management actions to ensure that sanctuary resources are not degraded as a result of a sanctuary designation. These actions include implementing regulations tailored to protect sanctuary resources from disturbance; installing a network of mooring buoys that provide safe ascent lines for divers and eliminates the practice of anchoring or grappling into shipwrecks to access the site; publishing and distributing site plans and best practices for wreck diving; and increasing the enforcement presence in the area. In order to assess changes to the resource's stability over time, NOAA will develop and implement a monitoring program for underwater cultural resources in the sanctuary. NOAA can also protect sensitive sites and newly discovered sites by withholding the coordinates of shipwrecks that it believes are sensitive or need evaluation and documentation.

NOAA believes that increasing public access and tourism to shipwreck sites is an important way to foster awareness, appreciation, and, ultimately, the protection of these special places. While NOAA expects tourism, including dive tourism, to increase in Lake Ontario after sanctuary designation, we do not anticipate a major increase in diving due to the great depth of many of the wrecks and the somewhat low level of diving activity in the Great Lakes in general. As discussed above, implementing the sanctuary regulations, mooring program, permitting system, and increasing enforcement in the sanctuary will minimize any direct impacts to the shipwrecks. Similarly, the final management plan includes education and outreach efforts that will promote responsible diving practices and increase public appreciation and stewardship of these sanctuary resources. Overall, NOAA determined that any adverse impacts on underwater cultural resources from designating the sanctuary would be negligible (refer to Sections 5.3.1 and 5.4.1 of the FEIS for more information).

9. Comment: NOAA received several comments on the two boundary alternatives in the draft environmental impact statement and on the proposed boundary in the NPRM. With regard to the size of the boundary, NOAA received several comments supporting inclusion of the Thousand Islands Region of the St. Lawrence River in the sanctuary's boundary. NOAA also received several comments that were opposed to the inclusion of this area of the St. Lawrence River. In raising concerns about the St. Lawrence River, some commenters noted that sanctuary designation could potentially lead to an increased number of divers and other recreational users in the St. Lawrence Seaway shipping channel, which they believed could present safety and navigational challenges. Commenters noted that the St. Lawrence River is managed jointly with Canada, has high shipping traffic in narrow shipping channels, has unpredictable weather, and has several islands and other obstacles in the river that present navigational challenges. Commenters were also concerned that if NOAA were to install surface mooring buoys in navigation channels this would create a navigation hazard for vessels.

Response: After evaluating public comments, NOAA did not include the St. Lawrence River segment within the sanctuary boundary. After considering public comments, NOAA has made a minor change to the eastward end of the sanctuary boundary by moving the boundary from Market Street in Cape Vincent to Tibbetts Point Lighthouse to ensure the sanctuary will not be in the St. Lawrence River. As the St. Lawrence River is critical to the maritime history of the area, NOAA will still include the story of the area in its interpretive materials and work with partners in this area. In addition, NOAA added Strategy RP-6: Evaluate opportunities to consider future sanctuary expansion to include the Thousand Islands region of the St. Lawrence River to the management plan, as there was considerable support for this area being included in the boundary.

10. Comment: NOAA received several comments asking NOAA to clarify which ports, harbors, and marinas are excluded from the sanctuary.

Response: NOAA is excluding the ports and harbors of Oswego, Pultneyville, Little Sodus Bay, Sodus Bay, and Port Ontario from the sanctuary boundary to ensure compatible use with commercial shipping and other activities, such as maintenance dredging. NOAA will also exclude privately owned bottomlands from the sanctuary. NOAA is including Sackets Harbor in the sanctuary because of the possible presence of underwater cultural and historical resources at that location.

In addition, the boundary of LONMS cuts across the mouths of rivers, streams, creeks, and ponds as it continues along the coastline of the sanctuary, which excludes those water bodies from the sanctuary. This is the case for East Bay, Port Bay, Blind Sodus Bay, North Pond, South Colwell Pond, Goose Pond, Floodwood Pond, and Black Pond. Therefore, these bays and their channels to the lake will not be included within the boundaries of the sanctuary. Please refer to Section III C. for more information.

11. Comment: NOAA received two comments seeking clarification of which water level datum will be used for the shoreline and how the shoreline boundary will be affected by fluctuating water levels.

Response: For the Lake Ontario shoreline, NOAA will set the shoreline sanctuary boundary at the Low Water Datum (LWD). The LWD is determined by the U.S. Army Corps of Engineers and is the chart datum to which soundings are referenced for NOAA charts in the Great Lakes. The LWD is also well understood internationally because it is a fixed datum for each lake relative to the International Great Lakes Datum. The sanctuary shoreline boundary will therefore automatically reflect any changes to either the Low Water Datum or the International Great Lakes Datum. As the LWD is set at a fixed elevation, the sanctuary boundary line is not affected by water levels in the lake.

12. Comment: NOAA received a few comments that certain areas important to commercial shipping, including current and future Federal anchorage areas, Recommended Courses, 4 and current and future dredged material disposal areas, should be excluded from the sanctuary. NOAA received one question about how sanctuary designation would affect Port Bay, New York's status as a safe harbor.

Response: NOAA will exclude the Federal navigation channel approaches and Federal anchorage area from the sanctuary to avoid unintended effects on port operations critical to the local, regional, and national economies. While NOAA initially excluded open lake dredged material disposal areas in the DEIS, after further internal analysis and consultations with the U.S. Army Corps of Engineers and New York State, NOAA is not excluding open lake dredged material disposal areas from the sanctuary boundary. Excluding these areas would create unwanted “holes” in the sanctuary boundary, which can create confusion for the public about the exact location of sanctuary boundaries. In addition, there is one active open lake dredged material disposal area in the sanctuary boundary, off the Port of Oswego, which has been in use since the late 1980s. The New York State Historic Preservation Officer verified that there are no known underwater cultural resources in that area. Therefore, dredged material disposal could continue in that area without violating NOAA's prohibitions, and sanctuary designation will not affect management of that area. NOAA will also have the authority to certify existing leases, permits, licenses, or rights of subsistence use or access in existence on the date of designation of the sanctuary. Therefore, existing dredged material disposal activities may be certified upon sanctuary designation if properly requested by the holder of the lease, permit, license, or right of subsistence use or access in question, if such activities would otherwise be in violation of sanctuary regulations. NOAA cannot exclude future dredged material disposal areas from the physical boundaries of the sanctuary, as they do not exist at this time.

NOAA has decided not to exclude Recommended Courses from the sanctuary, because they are voluntary courses and neither normal nor emergency transit activities occurring in these routes are expected to violate sanctuary prohibitions. NOAA will consider Recommended Courses when determining where to place mooring buoys and to ensure that any diving activity would be conducted at a safe distance from these courses. NOAA will exclude the existing Federal anchorage area from the sanctuary boundary (Tibbetts Point Anchorage Area). NOAA is not responsible for establishing new Federal anchorage areas and has not excluded a Federal anchorage area off of the Port of Oswego as suggested, as none exist at this time. Port Bay's status as a Safe Harbor would not be affected by the sanctuary designation.

13. Comment: NOAA received one comment supporting NOAA's proposal to require users to obtain a special use permit from NOAA to operate tethered underwater mobile systems at shipwreck sites. One commenter stated that operating tethered underwater mobile systems do not pose a threat to shipwreck sites in Lake Ontario.

Response: NOAA is moving forward with requiring operators to obtain a permit to operate tethered underwater mobile systems at shipwreck sites. A new special use permit category for “the operation of tethered underwater mobile systems at shipwreck sites within Lake Ontario National Marine Sanctuary” could apply when the proposed activity does not qualify for a general permit or authorization under the LONMS regulations, and the proposed activity otherwise satisfies the requirements in the applicable sanctuary regulations and section 310 of the NMSA. NOAA disagrees that remotely operated vehicle tethers do not pose a threat to shipwrecks. NOAA has included additional language in Section III E.4. to explain why tethered vehicles pose several threats to shipwreck sites, including intentional site disturbance, incidental site disturbance, and site pollution. The impact from such activities can result in damage to artifact assemblages and the structural integrity of a site. This risk is particularly concerning in the sanctuary area, as a large number of shipwrecks have intact masts and high site integrity.

14. Comment: NOAA received a few comments suggesting that the proposed NOAA regulations are duplicative of New York State's regulations that protect underwater cultural and historical resources.

Response: NOAA's prohibition on damage to underwater cultural and historical resources will complement and supplement the State's prohibition by adding an additional layer of Federal protection for those resources. Section 233(4) of New York's Education Law focuses on the New York State Museum and its collections procedures, and it authorizes the issuance of permits to excavate and gather cultural and historical objects upon the authorization of the New York State commissioner of education. This State law is aimed at ensuring the appropriate acquisition of cultural and historical objects for the State Museum's archiving purposes, while NOAA's regulation is intended to preserve in situ historic and culturally significant areas within the marine environment. In addition, the New York Education Law does not include equivalent programs to NOAA's for underwater archaeological research, education, interpretation, and enforcement, and NOAA's other regulations are designed to specifically address identified threats to underwater cultural and historical resources within LONMS. National marine sanctuary designation allows NOAA to utilize its Federal assets and enforcement capabilities to actively manage, protect, and interpret underwater cultural and historical resources in Lake Ontario. Refer to FEIS Appendix C: Analysis of Relevant Federal and State Statutes for more information on how the regulations complement and supplement State and Federal regulations and fill legal gaps.

15. Comment: NOAA received one comment that stated that the definition of “sanctuary resource” in the proposed rule was too broad and suggested that NOAA should use the programmatic definition of sanctuary resource under 15 CFR 922.11. The commenter said that by including the word “object” in the definition, that anything could be included, even on the shore. Another comment on the DEIS stated that it was unclear what NOAA was using for the definition of “shipwreck.”

Response: In the DEIS, NOAA proposed regulatory concepts, including suggested definitions. In the NPRM, NOAA used those concepts and created proposed regulatory definitions in the LONMS regulations for “sanctuary resource” and “shipwreck site” to include only the historical resources found in this area in accordance with the purpose of this designation. This definition of sanctuary resource does not include biological and ecological resources. For the purposes of LONMS, “sanctuary resource” means all historical resources as defined at 15 CFR 922.11, which includes any pre-contact and historic sites, structures, districts, objects, and shipwreck sites within the sanctuary's boundaries. NOAA's definition refers back to the programmatic definition of “historical resource” in 15 CFR 922.11, which does include the word “object”, but only objects that possess historical, cultural, archaeological or paleontological significance are included in this definition. The NPRM also proposed defining “shipwreck site” to mean all archaeological and material remains associated with sunken watercraft or aircraft that are historical resources, including associated components, cargo, contents, artifacts, or debris fields that may be exposed or buried within the lake bed. NOAA believes its definition is clear, and did not receive additional comments on the definition of “shipwreck site” after the NPRM was published. Therefore, NOAA is moving forward with this definition in this final rule. These definitions only apply to resources within the LONMS sanctuary boundaries, which start below the low water datum on the shoreline.

16. Comment: NOAA received several comments that the prohibition on anchoring could be problematic for commercial vessels and that NOAA should publish both the known and potential locations of shipwrecks sites. A related comment noted that if the no-anchoring prohibition extends to undiscovered shipwrecks, shippers might not be able to avoid anchoring on a shipwreck if they do not know where it is. Therefore, all locations, known or approximated, should be published by NOAA in a format accessible and useful to all mariners.

Response: Anchoring within the sanctuary is not prohibited in LONMS. However, grappling into or anchoring on a shipwreck site is prohibited. NOAA has narrowly worded this regulation to protect historic shipwrecks and aircraft from anchor damage, while still allowing anchoring inside of the sanctuary and outside of these discrete areas. The prohibition does not apply to any activity necessary to respond to an emergency threatening life or the environment. In addition, existing State regulations already prohibit damaging historic shipwreck sites within the area. To help vessels avoid anchoring on known shipwrecks sites, NOAA intends to publish known shipwreck site coordinates on the LONMS website ( https://sanctuaries.noaa.gov/lake-ontario).

15. Comment: NOAA received some comments that expressed concern that as written, the prohibition on grappling into or anchoring on shipwreck sites would prohibitively limit diver access to shipwreck sites without providing an alternative means of access. Comments suggested amending the proposed prohibition on grappling into or anchoring on shipwreck sites to say that grappling into or anchoring on shipwreck sites is prohibited at sites where mooring buoys have been installed.

Response: As NOAA seeks to promote public access while also ensuring sound resource protection, an initial focus of the sanctuary management plan will be the installation of mooring systems at sanctuary shipwreck sites. Moorings provide a secure and convenient anchoring point for users, which eliminates the practice of grappling into or anchoring on shipwrecks to access the site. NOAA also intends to publish guidelines on best practices for anchoring near shipwreck sites both with and without moorings to avoid injuring sanctuary resources. For example, NOAA intends to publish instructions for the public on how to use a weighted line and surface float at sites without moorings to mark a wreck for divers to descend and ascend. This weighted line would not be used as an anchoring line, and it would need to be continuously tended and then completely removed before the dive boat leaves the area.

NOAA is delaying implementation of the prohibition of grappling into or anchoring on shipwreck sites by two years rather than amending the prohibition as suggested by the commenters. This delayed implementation is intended to provide NOAA with adequate time to develop a shipwreck mooring program in consultation with the dive community and State and Federal agencies; begin installing moorings at high priority shipwreck sites; and publish site plans and best practices for accessing shipwreck sites with and without moorings. After this two-year period, NOAA will continue to build out a mooring buoy program as funds become available. During this two-year period, all other statutory and regulatory provisions will be in effect from the effective date of designation, including the prohibition on altering, destroying, or otherwise injuring any sanctuary resource (including shipwrecks) under 15 CFR 922.223(a)(1). It also continues to be a violation of State law to damage shipwrecks, including damage from anchoring or grappling.

16. Comment: NOAA received a few comments requesting that sanctuary regulations protect natural and biological resources in the Great Lakes ecosystem. Commenters suggested regulations to prevent wastewater discharges, discharge of mercury and other toxic materials, risks from aging infrastructure, spread of invasive species, and other risks to wildlife and habitat.

Response: This is beyond the scope of the purpose and need for this action, which is focused on the protection, management, and interpretation of underwater cultural and historical resources.

17. Comment: NOAA received several comments asking for clarification on how the sanctuary would affect dredging in the area.

Response: The sanctuary prohibitions seek to ensure that any activity carried out within sanctuary boundaries does not negatively impact underwater cultural resources. Dredging, pier construction and maintenance, and other construction activities are not expressly prohibited activities under the regulations. However, should the performance of any of these activities violate, for example, the sanctuary prohibition on “moving, removing, recovering, altering, destroying, possessing, or otherwise injuring” a sanctuary resource, it would be prohibited under those circumstances. Therefore, if dredging activities would not otherwise violate a sanctuary prohibition, they may occur within the sanctuary without a permit from NOAA.

Dredging activities in eastern Lake Ontario are regulated by New York State and the U.S. Army Corps of Engineers. Consideration of impacts to cultural resources should already be incorporated into the permit review processes for both the State and the U.S. Army Corps of Engineers because they both have legal requirements to minimize damage to cultural resources. NOAA would only be involved in those permitting processes if it is determined that underwater cultural and historical resources within the sanctuary may be impacted. NOAA, through its co-management arrangement with the State and through the consultation requirement for Federal agencies under the NMSA Section 304(d), will coordinate its involvement, including potential permitting, authorization, and consultation under Section 106 of the National Historic Preservation Act, when underwater cultural and historical resources may be impacted (see Section III I.3. for more information about authorizations).

NOAA recognizes that inlet dredging may extend into the sanctuary boundary. However, as indicated above, this dredging would only be prohibited by the sanctuary regulations and require a permit from NOAA if it is determined that underwater cultural and historical resources within the sanctuary may be impacted.

18. Comment: NOAA received comments asking whether the sanctuary would create any additional restrictions or regulatory requirements related to pier structure maintenance, pier construction, and shoreside construction.

Response: The shoreline boundary line for the sanctuary is set at the low water datum along the lakeshore. Any activities conducted above this line will be outside of the sanctuary and not subject to NOAA's jurisdiction. The LONMS regulations are narrowly focused on protecting underwater cultural and historical resources. Pier construction and other construction activities are not expressly prohibited activities under the regulations. However, should the performance of any of these activities violate, for example, the sanctuary prohibition on “moving, removing, recovering, altering, destroying, possessing, or otherwise injuring” a sanctuary resource, it would be prohibited under those circumstances. Therefore, if constructing a dock or pier would not otherwise violate a sanctuary prohibition, it may occur within the sanctuary. These types of activities are regulated by State and other Federal entities, and therefore, consideration of the impact to cultural resources should already be incorporated into the applicable permit review processes.

19. Comment: NOAA received a comment from Region 2 of the U.S. Environmental Protection Agency (EPA) that NOAA should address projected climate change effects in the region, greenhouse gasses, and land-based infrastructure impacts in the FEIS.

Response: NOAA considers climate management an agency priority, and therefore has incorporated a discussion of climate change impacts in the Great Lakes and potential negligible greenhouse gas emissions from its management activities into the FEIS (see FEIS Sections 4.4.1.2, 5.3.3, 5.4.3). NOAA has not identified any specific construction projects associated with sanctuary designation at this time, and therefore has not evaluated the environmental impacts for facility construction or operation as part of the action. Based on a facilities assessment, NOAA may choose to rent space in existing facilities rather than constructing new facilities. NOAA will evaluate the environmental impacts and consider environmentally responsible practices suggested in EPA's recommendations for infrastructure projects on a project-by-project basis.

20. Comment: NOAA received several comments about how the sanctuary would impact Great Lakes wind development in Lake Ontario.

Response: NOAA is not aware of any current Great Lakes wind energy projects in the area. All proposed energy generation and transmission projects are subject to rigorous Federal and State review to minimize or avoid impacts to historic resources, including shipwrecks. NOAA will work with the relevant authorities, including New York State, to ensure that any proposed wind turbines and supporting infrastructure would be properly sited to avoid negative impacts to underwater cultural resources within the sanctuary.

21. Comment: NOAA received a number of suggestions during the public comment period regarding naming the national marine sanctuary in Lake Ontario, including: Lake Ontario National Marine Sanctuary, Eastern Lake Ontario National Marine Sanctuary, Shining Waters National Marine Sanctuary, Great Lake Ontario National Marine Sanctuary, Great Lake Ontario—Thousand Islands National Marine Sanctuary, Gateway to the West National Marine Sanctuary, Gateway National Marine Sanctuary, and Carr National Marine Sanctuary.

Response: NOAA has decided to keep the name of the sanctuary as Lake Ontario National Marine Sanctuary. This decision was based on public comment, input from the Lake Ontario Sanctuary Advisory Council, and consultation with New York State, Indigenous Nations and Tribes, and local governments.

22. Comment: NOAA received several comments encouraging NOAA to invest in visitor centers and other facilities for people to learn about the sanctuary, the history of the area, and Lake Ontario. Commenters identified Huron, NY; Wayne County, NY; the eastern shore; Henderson, NY; Sackets Harbor; Sodus Point, NY as places to consider for interpretive facilities.

Response: NOAA agrees that facilities adjacent to the sanctuary are essential to its efforts to introduce the public to the sanctuary and to educate visitors about the significance of the area. Per the management plan Strategy SO-2, NOAA will conduct an infrastructure needs assessment to develop a `NOAA presence' in the sanctuary communities. The assessment will evaluate how NOAA and its partners can support the sanctuary's mission to provide a range of experiences to the public and then work with local communities, New York State, the Lake Ontario National Marine Sanctuary Advisory Council, and other appropriate partners to implement these plans.

23. Comment: NOAA received comments on the draft management plan that supported certain activities and suggested specific other ideas for education, research, and interpretation activities for the sanctuary.

Response: NOAA made revisions to the final management plan to add several new activities and clarify the intent of some of the existing activities. NOAA expanded some of the education activities to include working with partners on digital immersive experiences and other outreach opportunities; including partners to help determine the level of and type of visitor uses; and using side scan multi-beam sonar to map sanctuary resources. NOAA also added several new activities to address climate change, including integrating emissions reductions into sanctuary operations, considering how resource protection and management may need to evolve, and expanding education and outreach to include what climate change impacts in the Great Lakes and possible impacts to sanctuary resources. NOAA also added a new introduction to provide more background information about the sanctuary, the purpose of the management plan, and roles for NOAA, New York State, and the Lake Ontario National Marine Sanctuary Advisory Council.

24. Comment: NOAA received a few comments on the importance of acknowledging the Haudenosaunee Confederacy's ancestral homelands along Lake Ontario and involving the Haudenosaunee Confederacy Nations and Tribes in the interpretation of the proposed sanctuary.

Response: From the initiation of the designation process, NOAA has reached out to the seven federally recognized Indigenous Nations and Tribes in New York State that have connections to Lake Ontario. NOAA has engaged with the Onondaga Nation in government-to-government consultation throughout the designation process and has had meetings with the Seneca Nation. After designation, NOAA intends to continue to work in collaboration with the Indigenous Nations and Tribes to incorporate Indigenous history into sanctuary educational and outreach materials (including interpretive exhibits) and to collaborate on research regarding potential historic Indigenous resources in the area. Please refer to Section V.E. for more information on government-to-government consultation.

25. Comment: NOAA received comments regarding the accuracy of information on the list of shipwrecks and suggestions that NOAA add dates for historical events.

Response: NOAA researchers corroborated the edits suggested in these comments and NOAA has made corrections to the list of known shipwrecks in the FEIS. NOAA intends to continue to refine and update the shipwreck inventory over time as more information becomes available.

26. Comment: NOAA received comments on its list of identified threats in the DEIS and the proposed rulemaking, including suggestions of additional threats ( e.g., fishing equipment, such as downriggers), and skepticism about NOAA's ability to address impacts to the shipwrecks from natural threats identified in the DEIS and NPRM.

Response: NOAA included entanglement of “fishing equipment” as a threat to underwater cultural and historical resources in both the DEIS and NPRM. NOAA has added downriggers as a specific example of fishing equipment in the FEIS and final rulemaking in response to commenters who noted damage to shipwrecks from this type of fishing equipment. NOAA also added two actions to the management plan (Activities RP 3.1 and 3.2) to assess the amount and type of marine debris, including fishing gear, found on sanctuary resources and to remove debris from the sanctuary.

NOAA included natural processes in the list of identified threats to explain that the long-term integrity of underwater cultural resources are affected by numerous factors. NOAA does not claim to be able to prevent some of these natural processes from occurring. Rather, acknowledging these processes provides context for the state of underwater cultural and historical resources, and NOAA will document and monitor the progress of these processes to inform research and management decisions. For example, while the establishment of a sanctuary cannot prevent climate change, it allows NOAA to monitor and document the effects of climate change on the deterioration rates of wooden shipwrecks in fresh water, which is important information for the scientific and archaeological community. The final management plan includes actions that support this goal.

NOAA has determined that the designation of LONMS will not have a negative impact on the national marine sanctuary system and that sufficient resources exist to effectively implement sanctuary management plans and to update site characterizations. The finding for NMSA section 304(f) is published on the ONMS website for the Lake Ontario designation at https://sanctuaries.noaa.gov/lake-ontario.

In accordance with Section 304(a)(2) of the NMSA (16 U.S.C. 1434(a)(2)), and the provisions of NEPA (42 U.S.C. 4321-4370), NOAA has prepared a FEIS to evaluate the environmental effects of this action and alternatives. As this environmental review began before September 14, 2020, which was the effective date of the amendments to the Council on Environmental Quality (CEQ) regulations implementing NEPA (85 FR 43372 (Jul. 16, 2020)), the FEIS was prepared using the 1978 CEQ NEPA regulations. The Notice of Availability of the LONMS FEIS was made available to the public on April 19, 2024 (89 FR 28771). NOAA has also prepared a Record of Decision (ROD). Copies of the FEIS and ROD are available at the address and website listed in the ADDRESSES section of this final rule.

OMB has determined this rule is significant under Executive Order 12866, and as supplemented by E.O. 14094 NOAA prepared an analysis of the potential costs and benefits associated with this action. This analysis, “Supporting Economic Information for the Final Rulemaking Regarding Lake Ontario National Marine Sanctuary,” is available in the docket.

NOAA has concluded that this regulatory action does not have federalism implications sufficient to warrant preparation of a federalism assessment under Executive Order 13132 because NOAA supplements and complements State and local laws under the NMSA rather than supersedes or conflicts with them.

Under Executive Order 13175 of November 6, 2000, Federal departments and agencies are charged with engaging in regular and meaningful consultation and collaboration with officials of federally-recognized Nations and Tribes on the development of Federal policies that have implications for Indigenous peoples and are responsible for strengthening the government-to-government relationship between the United States and Indian Nations and Tribes. NOAA has concluded that this regulatory action does have Tribal implications under Executive Order 13175.

NOAA invited the following federally-recognized Nations and Tribes to engage in government-to-government consultation on the sanctuary designation: Cayuga Nation, Oneida Nation, Onondaga Nation, Seneca Nation of Indians, Saint Regis Mohawk Tribe, Tonawanda Seneca Nation, and Tuscarora Nation. NOAA sent initial letters inviting the seven Nations and Tribes to participate in government-to-government consultation prior to publication of the Notice of Intent (December 14, 2018). NOAA later sent notice of the DEIS publication (July 8, 2021) and the NPRM (January 19, 2023) to the same Nations and Tribes.

The Onondaga Nation elected to engage in government-to-consultation with NOAA, and the initial government-to-government consultation meeting with the Onondaga Nation was held on July 30, 2020. The Seneca Nation of Indians chose to informally engage with NOAA throughout the designation process instead of participating in formal government-to-government consultation. NOAA has also invited the seven federally-recognized Nations and Tribes to participate in the development of a Programmatic Agreement to fulfill NOAA's obligations under section 106 of the National Historic Preservation Act. In accordance with NOAA's policy on government-to-government consultation, the agency concluded the consultation with the Onondaga Nation on the designation process.

Upon designation, NOAA will offer consultation to federally recognized Nations and Tribes on sanctuary actions that may have Tribal implications as described in E.O. 13175, including those actions that might affect the ability of Nation or Tribal citizens to participate in activities protected by the 1794 Treaty of Canandaigua.

The Regulatory Flexibility Act (RFA), as amended and codified at 5 U.S.C. 601 et seq., requires an agency to prepare a regulatory flexibility analysis of any rule subject to the notice and comment rulemaking requirements under the Administrative Procedure Act (5 U.S.C. 553) or any other statute, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Pursuant to section 605(b), the Chief Counsel for Regulation, Department of Commerce, submitted a memorandum to the Chief Counsel for Advocacy, Small Business Administration, certifying that the proposed rule would not have a significant impact on a substantial number of small entities. The rationale for that certification was set forth in the preamble of the proposed rule (88 FR 3334, January 19, 2023), and NOAA's analysis stands.

Although NOAA has made minor changes to the regulations from the proposed rule to the final rule, none of the changes alter the initial determination that this rule will not have a significant impact on a substantial number of small entities. NOAA also did not receive any comments on the certification or conclusions. Therefore, the determination that this rule will not have a significant economic impact on a substantial number of small entities remains unchanged. As a result, a final regulatory flexibility analysis was not required and none was prepared.

Notwithstanding any other provisions of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., unless that collection of information displays a currently valid Office of Management and Budget (OMB) control number.

NOAA has a valid Office of Management and Budget (OMB) control number (0648-0141) for the collection of public information related to the processing of permits across the National Marine Sanctuary System. Designating a national marine sanctuary in Lake Ontario will likely result in a minimal increase in the number of requests for general permits, special use permits, certifications, and authorizations because this action proposes to add those approval types for this sanctuary. A large increase in the number of permit requests would require a change to the reporting burden certified for OMB control number 0648-0141. While not expected, if such permit requests do increase, a revision to this control number for the processing of permits would be requested.

In the most recent Information Collection Request revision and approval for national marine sanctuary permits (dated November 30, 2021), NOAA reported approximately 424 national marine sanctuary permitting actions each year, including applications for all types of permits, requests for permit amendments, and the conduct of administrative appeals. Of this amount, LONMS is expected to add 4 to 5 permit requests per year. The public reporting burden for national marine sanctuaries general permits is estimated to average three responses with an average of 1.5 hours per response, to include application submission, a cruise or flight log (or some other form of activity report), and a final summary report after the activity is complete. Therefore, the total annual burden hours is expected to increase by approximately 18 to 22.5 hours.

NOAA determined that these regulations do not necessitate a modification to its information collection approval by the Office of Management and Budget under the Paperwork Reduction Act. NOAA solicited comments on this determination in the proposed rule, and no public comments were received.

Section 106 of the National Historic Preservation Act (NHPA, 54 U.S.C. 306108) requires Federal agencies to consider the effects of their undertakings on historic properties and afford the Advisory Council on Historic Preservation (ACHP) an opportunity to comment. “Historic property” means any prehistoric or historic district, site, building, structure, or object included in or eligible for inclusion in the National Register of Historic Places maintained by the Secretary of the Interior. This term includes artifacts, records, and material remains that are related to and located within such properties, including properties of traditional religious and cultural importance to an Indigenous Nation or Tribe or Native Hawaiian organization. The regulations implementing section 106 of the NHPA (36 CFR 800) guide Federal agencies in meeting this responsibility through a process to identify historic properties potentially affected by the undertaking, assess its effects, and seek ways to avoid, minimize, or mitigate any adverse effects on historic properties, all of which occur in consultation with interested parties.

NOAA has determined that although designation of LONMS and the promulgation of sanctuary-specific regulations meet the definition of an undertaking as defined at 800.16(y), these activities are not of the type that have the potential to cause effects on historic properties. Therefore, NOAA has no further obligations under section 106, per 800.3(a)(1). However, NOAA recognizes that designation of a national marine sanctuary will lead to subsequent activities that may constitute undertakings subject to section 106 review under the NHPA and, therefore, NOAA is pursuing execution of a Programmatic Agreement (PA) pursuant to 36 CFR 800.14(b). The PA will provide a framework and process for consideration of future undertakings resulting from management of the sanctuary, associated field operations, and other activities. NOAA will develop this agreement in consultation with the New York State Historic Preservation Officer (SHPO), and the ACHP, with the Onondaga Nation participating as a consulting party.

The Sunken Military Craft Act of 2004 (SMCA; Pub. L. 108-375, Title XIV, sections 1401 to 1408; 10 U.S.C. 113 note) preserves and protects from unauthorized disturbance all sunken military craft that are owned by the United States government, as well as foreign sunken military craft that lie within United States waters, as defined in the SMCA. These craft, and their associated contents, represent a collection of non-renewable and significant historical resources that may also serve as maritime graves, carry unexploded ordnance, or contain oil and other hazardous materials.

Sunken military craft are administered by the respective Secretary concerned pursuant to the SMCA. The Secretary concerned is solely responsible for authorizing disturbance of sunken military craft under the SMCA, specifically for archaeological, historical, or educational purposes, and will consult with NOAA when considering permitting such activities. The Secretary concerned is also responsible for determinations of sunken military craft status and ownership, publicly disclosing the location of sunken military craft, and for determining eligibility and nominating sunken military craft as historic properties to the National Register of Historic Places. Any agreements with foreign sovereigns regarding sunken military craft in U.S. waters are negotiated by the Secretary of Defense, the Secretary of State, and the Secretary of the Navy, according to authorities vested in each by the SMCA. The Secretary concerned, or his or her designee, and NOAA will ensure coordination and foster collaboration on any research, monitoring, and educational activities pertaining to sunken military craft located within the sanctuary system.

Two known sunken military craft are located within LONMS (U.S. Coast Guard Cable Boat 56022 and a U.S. Army Air Force C-45 Expeditor) and the sanctuary may include additional sunken military craft that have yet to be discovered.

Section 307(c) of the Coastal Zone Management Act (CZMA; 16 U.S.C. 1451 et seq. ) requires Federal activities affecting the land or water uses or natural resources of a State's coastal zone to be consistent with that State's approved coastal management program to the maximum extent practicable. 16 U.S.C. 1456(c). In January 2023, NOAA initiated Federal consistency review with the New York State's Coastal Management Program. The New York Coastal Management Program provided comments to NOAA on the proposed rule. The New York Coastal Management Program issued a letter of concurrence with NOAA's consistency determination on April 7, 2023.

Executive Order 12898 directs that the programs of Federal agencies identify and avoid disproportionately high and adverse effects on human health and the environment of minority or low-income populations. The designation of national marine sanctuaries by NOAA helps to ensure the enhancement of environmental quality for all populations in the United States. Designating the sanctuary will not result in disproportionate negative impacts on any minority or low-income population. In addition, many of the impacts from designating the sanctuary will result in long-term or permanent beneficial impacts by protecting underwater cultural and historical resources, which may have a positive impact on communities by providing employment and educational opportunities, and potentially result in improved ecosystem services.

Executive Order 14096 builds on and supplements the foundational efforts of Executive Order 12898. This new Executive Order directs federal agencies to better protect overburdened communities from pollution and environmental harms; strengthen engagement with communities and mobilize federal agencies to confront existing and legacy barriers and injustices; promote the latest science, data, and research, including on cumulative impacts; increase accountability and transparency in federal environmental justice policy; and honor and build on the foundation of ongoing environmental justice work. The designation of the sanctuary, with a focus on community well-being and improving access to resources, will address the goals of Executive Order 14096.

For the reasons set forth above, NOAA is amending 15 CFR part 922 as follows:

This final rule updates the actuarial assumptions used to determine the present value of a single-employer plan's benefits when it terminates in a distress or involuntary termination, to determine the present value of multiemployer plan benefits in certain withdrawal liability calculations, and for other purposes. Except for conforming changes and some technical and editorial changes, the final rule is substantially the same as the proposed rule.

Legal authority for this action comes from section 4002(b)(3) of the Employee Retirement Income Security Act of 1974 (ERISA), which authorizes the Pension Benefit Guaranty Corporation (PBGC) to issue regulations to carry out the purposes of title IV of ERISA, and section 4044 of ERISA (Allocation of Assets). It also comes from section 4001 of ERISA (Definitions); section 4010 of ERISA (Authority to Require Certain Information); section 4022 of ERISA (Single-Employer Plan Benefits Guaranteed); section 4041 of ERISA (Termination of Single-Employer Plans); section 4041A of ERISA (Termination of Multiemployer Plans); section 4043 of ERISA (Reportable Events); section 4050 of ERISA (Missing Participants); section 4062 of ERISA (Liability for Termination of Single-Employer Plans Under a Distress Termination or a Termination by Corporation); section 4219 of ERISA (Notice, Collection, Etc., of Withdrawal Liability); section 4262 of ERISA (Special Financial Assistance by the Corporation); and section 4281 of ERISA (Benefits Under Certain Terminated Plans).

This final rule modifies the interest, mortality, and expense assumptions for valuing benefits under subpart B to PBGC's regulation on Allocation of Assets in Single-Employer Plans (“benefits valuation regulation”) (29 CFR part 4044) to:

• Modernize the interest assumption structure by adopting a yield curve approach;

• Enable the use of market interest rates as of the date of liability measurement ( i.e., the valuation date) as the basis for the interest assumption;

• Increase transparency by using a procedure based on publicly available yield curves as of the valuation date;

• Adopt a more recent mortality table along with a generational mortality improvement projection; and

• Simplify the expense assumption.

Because the assumptions for valuing benefits are incorporated by reference in other regulations, the changes to these assumptions affect PBGC's regulations on Annual Financial and Actuarial Information Reporting (29 CFR part 4010); Missing Participants (29 CFR part 4050); Notice, Collection, and Redetermination of Withdrawal Liability (29 CFR part 4219); Special Financial Assistance by PBGC (29 CFR part 4262); Duties of Plan Sponsor Following Mass Withdrawal (29 CFR part 4281); and other regulations.

The Pension Benefit Guaranty Corporation (PBGC) administers two insurance programs for private-sector defined benefit pension plans under title IV of the Employee Retirement Income Security Act of 1974 (ERISA): a single-employer plan termination insurance program and a multiemployer plan insolvency insurance program. In addition, PBGC administers a special financial assistance program for eligible financially distressed multiemployer plans.

Under the single-employer plan termination insurance program, covered plans that are underfunded may terminate either in a distress termination under section 4041(c) of ERISA or in an involuntary termination (one initiated by PBGC) under section 4042 of ERISA. When such a plan terminates, PBGC typically is appointed statutory trustee of the plan and becomes responsible for paying benefits in accordance with the provisions of title IV of ERISA.

Under the multiemployer insurance program, PBGC provides financial assistance under section 4261 of ERISA to plans that are insolvent and unable to pay benefits at the guaranteed level. This financial assistance is primarily in the form of financial assistance loans, paid to the plans periodically so that they can pay basic benefits when due. Additionally, under the special financial assistance program under section 4262 of ERISA, PBGC provides funding to eligible financially troubled multiemployer plans upon approval of an application. This final rule applies to the single-employer program, the multiemployer program, and the special financial assistance program.

PBGC has identified these amendments as part of its ongoing review of its regulations to ensure that PBGC provides clear and helpful guidance and modernizes outdated methodologies.

Under the single-employer insurance program, if a pension plan terminates without enough assets to provide for all benefits either in a distress termination under section 4041(c) of ERISA or in a plan termination initiated by PBGC under section 4042 of ERISA, PBGC typically is appointed statutory trustee of the plan and becomes responsible for paying benefits in accordance with the provisions of title IV of ERISA. When this happens, PBGC must determine (1) the extent to which participants' benefits are funded under the benefits valuation rules, (2) whether a terminated plan has sufficient assets to pay guaranteed benefits, and (3) how much a plan sponsor and its controlled group owe PBGC because of the termination under section 4062 of ERISA. The assumptions described in the benefits valuation regulation are used to value a plan's benefit liabilities for these purposes.

In setting the assumptions under the benefits valuation regulation, PBGC's long-standing policy is to set assumptions that produce valuations similar to the premium that a private-sector insurance company would charge for a group annuity contract covering the same plan benefits. 1 This policy ensures that for a plan entering PBGC trusteeship, the plan's benefit liabilities are measured consistently with annuity market pricing.

These assumptions are also used in other situations where it is appropriate for liabilities to be in line with private-sector group annuity prices. For example, PBGC's regulations on Notice, Collection, and Redetermination of Withdrawal Liability (29 CFR part 4219) and Duties of Plan Sponsor Following Mass Withdrawal (29 CFR part 4281) provide that these assumptions are used to value liabilities for purposes of determining withdrawn employers' reallocation liability  2 in the event of a mass withdrawal from a multiemployer plan. Multiemployer plans that receive special financial assistance under the regulation on Special Financial Assistance by PBGC (29 CFR part 4262) must, as a condition of receiving special financial assistance, use the interest assumption to determine withdrawal liability for a prescribed period. Additionally, plan sponsors are required to use these assumptions for certain purposes ( e.g., reporting benefit liabilities in filings required under PBGC's regulation on Annual Financial and Actuarial Information Reporting (29 CFR part 4010) or determining certain amounts to transfer to PBGC's Missing Participants Program on behalf of a missing participant of a terminating defined benefit plan under PBGC's regulation on Missing Participants (29 CFR part 4050)) and may use them for other purposes ( e.g., to ensure that plan spinoffs comply with section 414 (l) of the Internal Revenue Code (the Code)). 3

On August 18, 2023, PBGC published a proposed rule  4 to update the benefit valuation regulation's interest, mortality, and expense assumptions. PBGC provided a 60-day comment period and received five comment letters. Commenters were generally supportive of PBGC's efforts to make its assumptions more modern and transparent, and made specific suggestions. A discussion of the provisions of the final rule, the comment letters, and PBGC's responses follows. Except for conforming changes and some technical and editorial changes, the final rule is substantially the same as the proposed rule.

The benefits valuation regulation contains an interest assumption for determining the present value of future payments (4044 interest assumption). Since November 1993, the 4044 interest assumption has been expressed in a two-component structure known as “select and ultimate” in which one interest factor is assumed to be in effect for the first 20 or 25 years from the valuation date, and the other interest factor is assumed to be in effect thereafter.

To align valuations with the group annuity market, the American Council of Life Insurers conducts periodic surveys  5 of private-sector single-premium nonparticipating group annuity prices for PBGC. These surveys ask insurers for sample market pricing information (exclusive of loads for administrative expenses). The select and ultimate rates are determined such that in combination with the mortality assumption provided under the benefits valuation regulation, the resulting liabilities are in line with group annuity prices from the survey. 6

PBGC publishes the interest assumption in appendix B to part 4044 each quarter, for use in the subsequent quarter. Therefore, the interest rates used have not been rates observed on the valuation date.

This final rule improves upon current methodology in several ways. Actuarial practice, with the help of technology, has moved toward a bond yield curve approach where future benefits are discounted to the valuation date using yields for which the time to maturity equates to the length of the discounting period. By associating an interest rate with each specific benefit payment time horizon, using a yield curve for discounting better represents the present value of future benefits. As a result, the select and ultimate structure of PBGC's interest assumption under the benefits valuation regulation has become increasingly obsolete. A yield curve approach also better reflects the term structure of the fixed income investments that underlie the price of group annuities.

In addition, the rule improves the methodology by eliminating the lag between when data used to set PBGC's interest assumption are observed and the interest rate environment on the valuation date. Eliminating the lag is desirable because the interest rate environment on the valuation date also impacts the value of the assets that pension funds invest in, including fixed income investments, equity, and real estate.

Lastly, the final rule increases transparency with respect to the process for setting the 4044 interest assumption. The public availability of month-end bond yield data now makes it possible to adopt a methodology that would increase transparency and, in almost all situations, eliminate the lag entirely. 7

For these reasons, PBGC is structuring the 4044 interest assumption as a yield curve, more closely replicating the actual yields on the investments backing group annuities, and better reflecting today's actuarial practice. In addition, this final rule incorporates publicly available bond yield data into the methodology used to determine the 4044 interest assumption to increase transparency and bases the interest assumption on bond yields as of the valuation date, or as close as practical for valuations that are not as of a month-end.

The 4044 interest assumption in the final rule is the same as in the proposed rule. Commenters generally supported the transparency of the proposed method for determining the interest assumption and how it better reduces lag from the date data is observed to the valuation date. Some commenters made suggestions which are discussed in this section. The new interest assumption is based on a blend of two publicly available yield curves (the “blended market yield curve”) and is adjusted to the extent necessary so that the resulting liabilities align with group annuity prices. As with the proposed rule, the final rule's interest assumption consists of interest rates at maturity points from 0.5 to 30.0 years in half-year increments. The interest rate for the maturity point at year 30.0 is used to discount benefits expected to be paid more than 30 years after the valuation date. One commenter suggested that PBGC use a “uniform” interest rate rather than a yield curve. PBGC did not adopt this suggestion, because, as discussed in more detail earlier in the preamble, actuarial practice has moved toward a yield curve approach that better represents the present value of future benefits.

The process used to determine the interest assumption follows. First, the blended market yield curve is determined in three steps:

• Step 1—Obtain rates for maturities 0.5 through 30.0 on Treasury securities from the Department of the Treasury (Treasury Department) Nominal Coupon Issues Spot Rates, End of Month yield curve (TNC Yield Curve). 8

• Step 2—Obtain rates on corporate bonds for maturities 0.5 through 30.0 from the Treasury Department's High Quality Market Corporate Bond Yield Curve Spot Rates, End of Month yield curve (HQM Bond Yield Curve). 9

• Step 3—Combine the rates obtained in steps 1 and 2 weighting each corporate bond rate at two-thirds and each Treasury rate at one-third. 10

Rather than weighting corporate bonds at two-thirds and Treasury rates at one-third for all maturities, one commenter suggested using a “gliding” weight that varies over different maturities. The goal would be to reflect the fact that insurers typically have different pricing assumptions for immediate and deferred annuities (because of the higher risk associated with deferred annuities than immediate annuities). PBGC did not adopt this suggestion because a gliding weight would introduce substantial unnecessary complexity to the calculation of the blended market yield curve, and the effect described by the commenter is accounted for in the adjustment spreads discussed later in this section.

The yield curves used to develop the blended market yield curve are based on yields as of the end of each month. In PBGC's experience, most calculations that use 4044 assumptions use valuation dates as of the last day of a month, and for such calculations, the applicable blended market yield curve will be determined using the published TNC and HQM curves as of the valuation date. To accommodate other valuation dates, the final rule includes a “lookback” rule for valuation dates that are not as of the end of the month. Under the lookback rule, if the valuation date is not on the last day of a month, the applicable blended market yield curve as of the last day of the prior month will be used. For example, if the valuation date is February 15, 2023, the applicable blended market yield curve is the blended market yield curve as of January 31, 2023.

PBGC considered other possible rules for determining the blended market yield curve for valuation dates that are not the last day of the month, so that its interest assumption might better reflect the bond market on the actual valuation date ( e.g., a blend of the current and prior month's blended market yield curves, a requirement to use the blended market yield curve for the end of the month closest to the valuation date). However, because most plan terminations occur on the last day of a month, PBGC concluded that the benefits did not outweigh the additional complexity. PBGC requested comments on the application of the proposed interest assumption to valuation dates other than the last day of the month. One commenter responded that the proposed methodology is a significant improvement over current methodology.

As noted earlier in this preamble, once the blended market yield curve is determined, it will be adjusted so that the resulting present values align with group annuity prices. The term “4044 yield curve” is used to describe the blended market yield curve after reflecting such adjustments. The adjustments, or “spreads,” will be in the format of a curve ( i.e., a list of spreads through year 30, each of which applies to a specific point in the blended market yield curve). PBGC will determine and publish the spreads quarterly based on survey data on pricing of private-sector group annuities. More specifically, for each survey date, PBGC will first determine a yield curve that best fits data from those surveys, given an assumed mortality table. Next, PBGC will calculate the differences between this curve and the blended market yield curve as of the survey date. To smooth random variation and seasonality effects before publishing, PBGC will average those differences with the differences calculated from prior survey dates to determine the spreads that are used to adjust the applicable blended market yield curve. PBGC will publish the spreads (by amending its regulation) that are used for adjusting the blended market curve shortly before each quarter begins.

PBGC received a comment suggesting that PBGC adjust its spreads to compensate for a recently proposed change  11 to the way the Treasury Department determines its bond yields to avoid a discontinuity in PBGC's rates if the Treasury proposal is finalized. Because the Treasury Department has since finalized  12 its proposal, there will be no discontinuity in PBGC's rates. For that reason, there is no need to modify PBGC's methodology to accommodate the changes.

Another commenter made suggestions for increasing the transparency of the process for determining spreads such as adding detail to the white paper and PBGC's website. PBGC is pleased to provide the white paper along with this final regulation to substantially enhance the transparency of how PBGC determines the benefit valuation regulation's interest assumption. PBGC will continue to strive to enhance the transparency of this process.

The spreads for any quarter are used to adjust the month-end blended market yield curves in that quarter. For example, the first quarter spreads are used to adjust the blended market yield curves as of January 31, February 28, 13 and March 31. Because of the lookback rule, the first quarter spreads also apply to valuation dates occurring April 1 through April 29 because for such dates, the applicable blended market yield curve is the curve as of March 31. Similarly, the fourth quarter spreads are used to adjust the blended market yield curves as of October 31, November 30, and December 31. Because of the lookback rule, the fourth quarter spreads also apply to valuation dates occurring January 1 through January 30, which use the blended market yield curve rate determined as of December 31 from the prior year.

The following example illustrates how the 4044 yield curve would have been developed for a valuation date on December 31, 2023, had the rule been in effect at that time and assuming the fourth quarter spreads for 2023 were as shown in column D below:

Because the yield curves used to develop the blended market yield curve are not published until a week or two after the end of the month, in most situations ( e.g., month-end valuation dates), the 4044 yield curve will not be available in advance of the valuation date. Given the typical situations where practitioners use 4044 interest assumptions ( e.g., Annual Financial and Actuarial Information Reporting (4010 reporting)), PBGC does not anticipate that this will create a timing problem, and no commenter expressed timing concerns.

This final rule amends the benefits valuation regulation to prescribe the use of the 4044 yield curve and the process to determine it. It also amends part 4044 to replace the select and ultimate interest factor table with a table showing spread adjustments for blended market yield curves. For each quarter, the table will show 60 spread adjustments. Because the spread adjustments for the third quarter of 2024 (the quarter for which this rule is first applicable) will not be determinable until shortly before the third quarter, those spreads are not provided in this final rule. PBGC will issue the third quarter 2024 spread adjustments when they are available.

Given this methodology, practitioners will be able to determine the 4044 yield curve as of the end of any month as soon as the Treasury Department publishes the two yield curves underlying the development of the blended market yield curve. (The applicable spreads will be specified in the regulation before the blended market yield curves are available.) In addition, to reduce administrative burden on practitioners, PBGC will post the 4044 yield curve on its website at www.pbgc.gov each month shortly after its underlying data become available. In addition to posting the 4044 yield curve, one commenter suggested that PBGC should post a single interest rate “index” to provide a readily comparable measure of annuity market pricing and to assist multiemployer plans that receive SFA in determining withdrawal liability payment schedules. PBGC did not adopt this suggestion because cash flows vary from plan to plan, and no single index rate would be representative of all plans. PBGC agrees with the commenter that actuaries for plans that receive SFA will be able to determine withdrawal liability payment schedules using the 4044 yield curve and notes that actuaries will be able to set up a spreadsheet to do the calculation without much difficulty. To illustrate how the calculation may be done, before the effective date of the final rule, PBGC will post an example on its website at www.pbgc.gov.

The mortality assumptions prescribed by the benefits valuation regulation relate to the probabilities that a participant (or beneficiary) will survive to each expected benefit payment date. The regulation currently prescribes six sets of mortality tables: tables for male and female individuals not receiving a disability benefit (healthy lives); tables for male and female participants who are disabled under a plan provision that does not require eligibility for Social Security disability benefits (non-Social Security disabled); and tables for male and female participants who are disabled under a plan provision requiring eligibility for Social Security disability benefits (Social Security disabled).

For healthy lives, the mortality tables are based on the GAM-94 Basic Table with mortality improvements projected forward to the year of valuation plus 10 years using the mortality improvement Scale AA, a static mortality improvement projection. A static mortality projection “project[s] the [base mortality] table for a specified number of years and use[s] the resulting table without further projection.”  14 For Social Security disabled participants, the regulation uses the Mortality Tables for Disabilities Occurring in Plan Years Beginning After December 31, 1994, from IRS Rev. Rul. 96-7 (1996-1 C.B. 59). For non-Social Security disabled participants, the benefits valuation regulation uses the healthy lives mortality rates for an individual 3 years older ( i.e., the table is set forward by 3 years). In addition, to prevent the rates at older ages from exceeding the rates for Social Security disabled participants, the mortality rates for non-Social Security disabled participants are capped at the corresponding rates for Social Security disabled participants. These assumptions are described in appendix A to part 4044.

PBGC seeks to ensure that the assumptions described in the benefits valuation regulation, in the aggregate, produce annuity valuations similar to those produced by private-sector insurers. To do so, PBGC attempts to keep its “assumptions in line with those of private-sector insurers, and to modify its mortality assumptions whenever it is necessary to do so to achieve consistency with the private insurer assumptions.”  15 PBGC determined that it could better achieve consistency with insurers' mortality assumptions by updating the mortality assumptions under the benefits valuation regulation.

PBGC's review of insurance industry practice indicates that insurers use fully generational mortality tables rather than the simpler static mortality tables used in the current regulation. Generational mortality tables are a series of mortality tables, one for each year of birth, each of which fully reflects projected trends in mortality rates. In addition to achieving better consistency with insurers' assumptions, over the past decade, generational mortality tables have become widely accepted as best practice in the actuarial community. With such projections, actuaries can “theoretically more accurately replicate the anticipated pattern of improvement in mortality rates.”  16

PBGC's review also indicates that insurers typically use more recent base mortality tables than the GAM-94 Basic Table. Similarly, it has also become clear that the industry recognizes and distinguishes between mortality for annuitants ( i.e., individuals receiving benefits) and non-annuitants ( i.e., terminated vested and active participants).

The Internal Revenue Service (IRS) and the Treasury Department reached the same conclusions regarding trends in mortality assumptions. On April 28, 2022, they issued a proposed rule (IRS proposal)  17 to amend their mortality assumptions regulations under section 430(h)(3) of the Code. PBGC derived its preamble discussion and operative regulatory provisions for its healthy lives mortality assumptions from the IRS proposal. On October 20, 2023, IRS and Treasury finalized their regulation. 18

This final rule adopts the proposed healthy lives base mortality tables. The tables are derived from the tables set forth in the Pri-2012 Private Retirement Plans Mortality Tables Report published by the Retirement Plan Experience Committee (RPEC) of the Society of Actuaries (SOA) in 2019 (Pri-2012 Report). 19 PBGC agrees with IRS and the Treasury Department that the Pri-2012 Report is the best available study of the actual mortality experience of pension plan participants (other than disabled individuals). 20

The tables in the Pri-2012 Report are gender-distinct and provide separate non-annuitant and annuitant mortality rates. 21 Consistent with PBGC's proposed rule, this final rule does not provide separate tables for annuitants who are retirees and annuitants who are contingent beneficiaries. Rather, it provides annuitant mortality tables that combine the mortality experience of retirees and contingent beneficiaries. The annuitant mortality tables are used to determine the present value of benefits for an annuitant. For a non-annuitant, the non-annuitant mortality tables are used for the periods before the participant is projected to commence receiving benefits, and the annuitant mortality tables are used for later periods. For a beneficiary of a participant, the annuitant mortality tables apply for the period beginning with each assumed commencement of benefits for the participant. If the participant has died (or to the extent the participant is assumed to die before commencing benefits), the annuitant mortality tables apply for the beneficiary for the period beginning with each assumed commencement of benefits for the beneficiary.

These base tables generally have the same mortality rates as the employee and non-disabled annuitant mortality rates that were released by RPEC in connection with the Pri-2012 Report. However, the base tables provided in this rule also include rates for certain situations that were not included in the base tables in the Pri-2012 Report ( i.e. non-annuitant mortality rates for ages below age 18 and above age 80 and annuitant mortality rates for ages below age 50). The preamble to the IRS proposal describes the methodology that was used to develop those additional rates. 22

Several commenters made suggestions for the regulation's base mortality table. One commenter recommended multi-factor mortality tables because, according to the commenter, they better match insurer practice and they more precisely predict mortality by using multiple data fields to capture the diversity of pension plan mortality by analyzing the characteristics of the individuals in those pension plans. Multi-factor mortality is an evolving area, which PBGC intends to study and monitor as PBGC continues to review ways to improve the regulation's prescribed assumptions in the future. Another commenter suggested prescribing use of the Society of Actuaries' RP-2014 Mortality Table instead of Pri-2012. This final rule does not adopt RP-2014 because, as discussed earlier in this preamble, PBGC believes (and one commenter agreed) that Pri-2012 is the best available study of the actual mortality experience of pension plan participants. Pri-2012 is also based on more recent mortality experience than RP-2014 (which is based on an experience study for the years 2004-2008).

PBGC received a few comments about the feasibility of using the 4044 interest assumption with a different mortality assumption for calculations other than those for which the use of both assumptions is required. For example, one commenter noted that because of the way the 4044 yield curve will be determined ( i.e., using a current and representative mortality assumption to determine the spreads), PBGC's discount rate spot yield curve will stand on its own as a reasonable assumption for multiple purposes and suggested that for certain purposes, such as multiemployer withdrawal liability, the use of a “blue collar” mortality table “may better reflect the underlying demographics of the pension plan being valued.”

While it is true that, when used together, the 4044 interest and mortality assumptions are designed to result in liabilities that are similar to what a private-sector insurance company would charge for a group annuity contract, PBGC agrees that it may be reasonable to use the interest assumption with a different mortality assumption for situations where the use of both assumptions is not required (assuming the mortality assumption reflects plan demographics).

With respect to the comment on withdrawal liability, in general, PBGC does not mandate use of the 4044 mortality assumption to determine withdrawal liability. However, as discussed earlier in this preamble, both the prescribed interest and mortality assumptions must be used to determine reallocation liability in the event of a mass withdrawal. In consideration of the comment, PBGC intends to review the assumptions and methods required for such calculations for possible inclusion in a future rulemaking project.

The base tables described above have a base year of 2012 (the central year of the experience study used to develop the mortality tables in the Pri-2012 Report). Like the proposed rule, the base tables are used to develop the mortality tables for future years using Scale MP-2021 Rates (the mortality improvement scale in the Mortality Improvement Scale MP-2021 Report, 23 which was published by the RPEC in October 2021). That mortality improvement scale was developed using the same underlying methodology used to develop RPEC's earlier mortality improvement scales but reflects historical population data through 2019 and the change to the RPEC-selected assumptions for the long-term rate of mortality improvement that was first incorporated in the Mortality Improvement Scale MP-2020 Report.

Although IRS and Treasury also proposed using Scale MP-2021 for future years, their final rule provides for a slightly different improvement projection. Because PBGC seeks to match insurance company assumptions and has no indication that changes similar to those finalized by IRS and Treasury would more closely match insurance company assumptions, PBGC is finalizing its mortality improvement scale as proposed. PBGC will continue to monitor and consider new mortality trend data, including updated mortality improvement scales issued by RPEC, and intends to amend its regulation to account for new data when appropriate. The updated healthy lives mortality assumptions closely align with the mortality assumptions used by private-sector insurers. The software needed to use generational mortality tables is widely used and is often used for other business needs such as financial accounting. Using modern actuarial software, the new assumptions should be no more difficult to apply.

As with the proposed rule, this final rule provides that the healthy lives mortality assumptions (base table and improvement projections) be used for disabled individuals that are not eligible for Social Security disability benefits. For individuals that are eligible for Social Security disability benefits, as with the proposed rule, the final rule updates the mortality assumptions to reflect more recent mortality experience by using tables published in the Social Security Disability Insurance Program Disabled Worker Experience Actuarial Study 125, a study providing “extensive information on recent actual [Social Security Disability Insurance] disabled worker experience.”  24 The mortality rates for Social Security disabled participants comprise two tables: Table 12 for Social Security disabled participants age 75 and younger, and Table 7C for Social Security disabled participants age 76 and older. As with the current mortality assumptions for individuals that are eligible for Social Security disability benefits, the updated assumptions do not include a mortality improvement scale.

For the reasons discussed earlier, this final rule amends PBGC's benefits valuation regulation to replace mortality tables for healthy lives with mortality tables from the Pri-2012 Report. It also replaces tables relating to mortality improvement for healthy lives with references to generational mortality improvement projections from the Mortality Improvement Scale MP-2021 and prescribes their use. It further amends PBGC's benefits valuation regulation to replace tables relating to mortality for Social Security disabled participants with tables derived from Social Security Actuarial Study 125. Finally, it amends the regulation so that the provisions specifying assumptions for non-Social Security disabled lives refer to the healthy lives mortality assumptions.

Certain administrative expenses are incurred by insurers in connection with the payment of benefits. These expenses are for such things as establishing plan files, reviewing plan provisions to determine benefit entitlements, setting up and updating records, processing pension applications, and remitting benefit payments. Insurers use assumptions about these expenses to price annuities. To account for this component of private-sector annuity pricing, the benefits valuation regulation specifies expense assumptions. 25

Currently, these expense assumptions are based in part on the total present value of plan benefits. They are intended to recognize that the computation of benefit valuations entails certain expenses that are roughly proportional to the number of participants in a plan, and that private insurers' expenses, expressed as a percentage of liabilities, are somewhat lower for larger plans. For the expenses proportional to the number of plan participants, the benefits valuation regulation assumes a cost of $200 per participant. In addition, a percentage of liabilities is added to the assumed expense amount for all plans in a way that accounts for the efficiency advantage of larger plans. That percentage is 5 percent of liabilities up to $200,000, plus a smaller, variable percentage of liabilities above $200,000.

As discussed above, PBGC attempts to set its assumptions to match the private-sector annuity market. PBGC has determined that simple per-participant loads are the most common structure for explicitly charging for administrative expenses and that insurers' expense assumptions account for a very small portion of the total cost of a group annuity. PBGC's current multi-tiered expense assumptions are too complicated given expense assumptions' small share of annuity pricing and the simple structure insurers typically use. Thus, as with the proposed rule, this final rule simplifies the expense assumptions. This rule sets the expense load assumption at $400 per participant for the first 100 participants and $250 for each participant over 100. PBGC concluded these amounts were reasonable based on a review of per-participant charges included in group annuity contracts for terminating plans provided to PBGC as part of the standard termination process. These amounts will be updated for inflation using the Consumer Price Index (CPI-U) each year. The rule amends PBGC's benefits valuation regulation to prescribe these updated expense assumptions.

PBGC received two comments on the proposed expense assumptions. One commenter suggested breaking down the expense assumptions between deferred and immediate annuities because expenses on deferred annuities are higher than on immediate annuities. Though PBGC agrees that deferred and immediate annuities have different expense levels, because expenses are such a small component of valuations, capturing this difference is not worth complicating the assumption. Another commenter said PBGC should prescribe a lower expense assumption, yielding expenses between 1.5 percent and 1.8 percent. The prescribed expense assumption is a dollar amount per participant and will generally result in assumed expenses below 1.5 percent of liability.

PBGC's Missing Participants regulation (29 CFR part 4050) provides that the interest assumption used to determine certain amounts to be transferred on behalf of a missing participant from a terminating defined benefit plan  26 to PBGC's Missing Participants Program is the interest assumption under PBGC's benefits valuation regulation applicable to valuations occurring in January of the calendar year in which the benefit determination date occurs. 27 Under the current benefits valuation regulation, the same interest assumption is used for any valuation date in January. However, under this final rule, two different interest assumptions apply to valuation dates in January ( i.e., the 4044 yield curve as of December 31 applies for valuation dates occurring January 1 through January 30 and the 4044 yield curve as of January 31 applies for a January 31 valuation date). If the Missing Participants regulation were left unchanged, it would be unclear which 4044 yield curve should be used for benefit determination dates occurring in a particular calendar year. Thus, like the proposed rule, this final rule amends the Missing Participants regulation to prescribe the use of the 4044 yield curve applicable to valuations occurring on December 31 of the year preceding the calendar year in which the benefit determination date occurs. However, there is no 4044 yield curve applicable to valuations occurring on December 31, 2023. Consequentially, for benefit determination dates to which this rule applies in 2024, a transition rule prescribes the use of the 4044 yield curve applicable to valuations occurring on July 31, 2024.

PBGC's Missing Participants regulation prescribes use of a unisex version of the benefit valuation regulation's mortality assumption for healthy lives ( i.e., a 50/50 blend of the male and female mortality tables) to determine certain amounts to be transferred on behalf of a missing participant from a terminating defined benefit plan to PBGC's Missing Participants Program. Doing the required calculation based on the current mortality assumption is relatively straightforward.

However, because this final rule provides that future mortality improvements will be reflected using generational mortality, if the Missing Participants regulation were left unchanged, practitioners would need to create, and use, a unisex version of a generational mortality table, which would be somewhat cumbersome and complicated. To alleviate the complication, as with the proposed rule, PBGC is amending the Missing Participants regulation to provide that a unisex, static version of the mortality table be used for this purpose. More specifically, PBGC is amending the portion of the definition of “PBGC missing participants assumptions” related to mortality to use a 50/50 blend of static male and female mortality combined tables reflecting non-annuitant and annuitant mortality rates. The proposed rule stated that these male and female tables would be identical to the static mortality tables proposed by IRS and Treasury as an alternative for plans with 500 or fewer participants. Though this final rule does not change the methodology for determining the missing participants static mortality tables, the tables will not be identical to the IRS and Treasury small plan tables because of changes to improvement projection that IRS and Treasury finalized. This final rule includes the static mortality table for 2024 valuations to which this rule applies. PBGC intends to amend the regulation annually to provide static mortality tables reflecting mortality improvements.

As previously discussed, the interest, mortality, and expense assumptions are specified in appendixes to part 4044. To better align with Office of the Federal Register guidance, this final rule specifies the updated assumptions within the codified text of part 4044 instead. The expected retirement age assumptions, which are also used in present value of benefit calculations under part 4044 (but not modified by this rule), are moved to codified text as well. This final rule retains the current interest assumptions in appendix B for reference, but the other three appendixes are removed. The final rule updates cross-references to the appendixes throughout PBGC's regulations so that they refer to the codified text. Compared to the proposed rule, the final rule updates additional cross references in PBGC's regulations to reflect the new location of the expected retirement age assumptions.

One commenter suggested providing a transition period for the regulated community to adapt to the new format of the assumptions and that PBGC continue publishing select and ultimate interest rates for a period of time for third-party use. The amendments apply to calculations where the valuation date is on or after July 31, 2024, giving adequate time to those that need it. However, PBGC will not continue to publish select and ultimate rates. As described earlier in the preamble, the select and ultimate methodology is outmoded.

Section 4044.53(c)(1)(iii) of the final regulation provides that the mortality improvement rates used to construct the generational mortality tables to be used are the Scale MP-2021 Rates which are described in the Mortality Improvement Scale MP-2021 Report. The Office of the Federal Register (OFR) has regulations concerning incorporation by reference. 1 CFR part 51. These regulations require that agencies must discuss in the preamble to a rule or proposed rule the way in which materials that the agency incorporates by reference are reasonably available to interested persons, and how interested parties can obtain the materials. 1 CFR 51.5(b).

The Scale MP-2021 Rates and the Mortality Improvement Scale MP-2021 Report are described in this preamble under the heading “Updated healthy lives mortality assumption—mortality improvements” in the “Mortality Assumption” section of this preamble. The Mortality Improvement Scale MP-2021 Report was issued by the Retirement Plans Experience Committee of the Society of Actuaries in October of 2021 and is available to the public for free viewing online on the Society of Actuary's website at https://www.soa.org/resources/experience-studies/2021/mortality-improvement-scale-mp-2021. The Scale MP-2021 Rates consist of tables of mortality improvement rates by age, sex, and year that are used to project future mortality improvements on the base mortality table.

The Office of Management and Budget (OMB) has determined that this rule is not a “significant regulatory action” under Executive Order 12866. Accordingly, OMB has not reviewed the final rule under Executive Order 12866.

Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity).

Although this is not a significant regulatory action under Executive Order 12866, PBGC has examined the economic implications of this final rule and has concluded that the rule's changes will have a minimal impact on liabilities determined under PBGC's regulations.

The updates to the assumptions under the benefits valuation regulation will, on average, produce benefit liabilities that are very close to the valuations produced by the current assumptions. The results for any particular benefit valuation, however, could be different as a result of adopting an interest rate methodology based on market rates ( i.e., eliminating the lag between when data used to set the interest assumption are observed and the interest rate environment on the valuation date).

The impact on liabilities resulting from eliminating the above-noted lag will not be biased in favor of higher or lower benefit liabilities. Also, the impact should be fairly small ( i.e., within a few percentage points) unless market rates on the valuation date are significantly different from what PBGC would have used to determine the 4044 interest assumption absent this change ( i.e., had the lag not been eliminated).

PBGC's analysis indicates that, ignoring the impact of the interest rate timing difference described in the prior paragraph, the impact will also be relatively small in situations where the updated 4044 interest assumption is used, but not the updated 4044 mortality assumption. For example, this might be the case with respect to certain withdrawal liability calculations. For plans using the 4044 interest assumption but not the 4044 mortality assumption to determine withdrawal liability, the updated assumptions will generally result in lower benefit liabilities, but liability measurements should be within a few percentage points of liability measurements using the current methodology. Thus, the change will result in only a minor change in withdrawal liability.

The changes to generational mortality tables and to a yield-curve based interest assumption impose a small and not significant administrative burden on plans and practitioners that do calculations using the assumptions.

Section 6 of Executive Order 13563 requires agencies to rethink existing regulations by periodically reviewing their regulatory programs for rules that “may be outmoded, ineffective, insufficient, or excessively burdensome.” These rules should be modified, streamlined, expanded, or repealed as appropriate. PBGC is updating certain outmoded assumptions in its benefits valuation regulation consistent with the principles for review under E.O. 13563.

The Regulatory Flexibility Act  28 imposes certain requirements respecting rules that are subject to the notice-and-comment requirements of section 553(b) of the Administrative Procedure Act, or any other law, 29 and that are likely to have a significant economic impact on a substantial number of small entities. Unless an agency certifies that a final rule is not likely to have a significant economic impact on a substantial number of small entities, section 604 of the Regulatory Flexibility Act requires that the agency present a final regulatory flexibility analysis at the time of the publication of the final rule describing the impact of the rule on small entities and seek public comment on such impact. Small entities include small businesses, organizations, and governmental jurisdictions. 30

For purposes of the Regulatory Flexibility Act requirements with respect to this final rule, PBGC considers a small entity to be a plan with fewer than 100 participants. 31 This is substantially the same criterion PBGC uses in other regulations  32 and is consistent with certain requirements in title I of ERISA  33 and the Code, 34 as well as the definition of a small entity that PBGC and the Department of Labor (DOL) have used for purposes of the Regulatory Flexibility Act. 35

Further, while some large employers operate small plans along with larger ones, in general, most small plans are maintained by small employers. Thus, PBGC believes that assessing the impact of the final rule on small plans is an appropriate substitute for evaluating the effect on small entities. The definition of small entity considered appropriate for this purpose differs, however, from a definition of small business based on size standards promulgated by the Small Business Administration  36 under the Small Business Act. PBGC therefore requested comments on the appropriateness of the size standard used in evaluating the impact of the amendments in the final rule on small entities. PBGC received no comments on this point.

Based on its definition of small entity, PBGC certifies under Section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) that the amendments in this final rule will not have a significant economic impact on a substantial number of small entities. As explained earlier in this preamble, the assumptions will continue to produce valuations that align with group annuity prices. Because of this, PBGC does not expect the assumptions to have a significant economic impact on a substantial number of entities of any size. Similarly, because technology improvements allow even small plans (and their service providers) to apply the more complicated interest and mortality assumptions of this rule without additional administrative burden, this final rule will not increase administrative costs on these entities. Accordingly, as provided in Section 605 of the Regulatory Flexibility Act, sections 603 and 604 do not apply.

For the reasons stated in the preamble, PBGC amends 29 CFR parts 4001, 4010, 4022, 4041, 4041A, 4043, 4044, 4050, 4262, and 4281 as follows:

This document and additional information concerning OFAC is available on OFAC's website ( https://ofac.treasury.gov ).

On May 12, 2022, OFAC, in consultation with the Department of State, issued GL 22 to authorize certain transactions otherwise prohibited by the Syrian Sanctions Regulations, 31 CFR part 542 (the “Regulations”). GL 22 was made available on OFAC's website ( https://ofac.treasury.gov ) when it was issued. OFAC subsequently published GL 22 in the Federal Register (88 FR 25278, April 28, 2023). GL 22 includes an annex listing the areas of northwest and northeast Syria in which activities are authorized under GL 22.

On June 6, 2024, OFAC, in consultation with the Department of State, amended the Regulations to include additional interpretive and definitional guidance, general licenses, and other regulatory provisions that will provide further guidance to the public. As part of this regulatory amendment, OFAC incorporated GL 22 into the Regulations as § 542.533. OFAC is now publishing the annex to GL 22 as the List in the Federal Register . The text of the List is provided below.

The areas of northeast and northwest Syria in which activities are authorized by 31 CFR 542.533, subject to conditions in paragraph (c) of 31 CFR 542.533, including the exclusion of transactions involving the Government of Syria, are:

This document and additional information concerning OFAC are available on OFAC's website: https://ofac.treasury.gov.

On April 5, 2005, OFAC issued the Syrian Sanctions Regulations, 31 CFR part 542 (70 FR 17201, April 5, 2005) (the “Regulations”), to implement Executive Order (E.O.) 13338 of May 11, 2004, “Blocking Property of Certain Persons and Prohibiting the Export of Certain Goods to Syria” (69 FR 26751, May 13, 2004), pursuant to authorities delegated to the Secretary of the Treasury in E.O. 13338. The Regulations were initially issued in abbreviated form for the purpose of providing immediate guidance to the public. On May 2, 2014, OFAC reissued the Regulations in their entirety (79 FR 25414, May 2, 2014), and, among other things, implemented E.O. 13399 of April 25, 2006 (“Blocking Property of Additional Persons in Connection With the National Emergency With Respect to Syria”) (71 FR 25059, April 28, 2006), E.O. 13460 of February 13, 2008 (“Blocking Property of Additional Persons in Connection With the National Emergency With Respect to Syria”) (73 FR 8991, February 15, 2008), E.O. 13572 of April 29, 2011 (“Blocking Property of Certain Persons With Respect to Human Rights Abuses in Syria”) (76 FR 24787, May 3, 2011), E.O. 13573 of May 18, 2011 (“Blocking Property of Senior Officials of the Government of Syria ”) (76 FR 29143, May 20, 2011), E.O. 13582 of August 17, 2011 (“Blocking Property of the Government of Syria and Prohibiting Certain Transactions With Respect to Syria”) (76 FR 52209, August 22, 2011), and E.O. 13606 of April 22, 2012 (“Blocking the Property and Suspending Entry Into the United States of Certain Persons With Respect to Grave Human Rights Abuses by the Governments of Iran and Syria via Information Technology”) (77 FR 24571, April 24, 2012). OFAC has amended the Regulations several times, most recently on November 26, 2021 to expand an authorization related to certain activities of nongovernmental organizations in Syria (86 FR 67324, November 26, 2021).

In this document, OFAC is further amending the Regulations to implement E.O. 13608 of May 1, 2012, “Prohibiting Certain Transactions With and Suspending Entry Into the United States of Foreign Sanctions Evaders With Respect to Iran and Syria” (77 FR 26409, May 3, 2012), the Syria Human Rights Accountability Act of 2012 (22 U.S.C. 8791 et seq. ) (SHRAA), the Countering America's Adversaries Through Sanctions Act (22 U.S.C. 9401 et seq. ) (CAATSA), and the Caesar Syria Civilian Protection Act of 2019 (Pub. L. 116-92, Div. F, Title LXXIV, 133 Stat. 2290 (22 U.S.C. 8791 note)) (Caesar Act).

On May 11, 2004, the President, invoking the authority of, inter alia, the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq. ) (IEEPA) and the Syria Accountability and Lebanese Sovereignty Restoration Act of 2003 (Pub. L. 108-175, 117 Stat. 2482 (22 U.S.C. 2151 note)), issued E.O. 13338. In E.O. 13338, the President determined that the actions of the Government of Syria in supporting terrorism, continuing its occupation of Lebanon, pursuing weapons of mass destruction and missile programs, and undermining United States and international efforts with respect to the stabilization and reconstruction of Iraq constituted an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States and declared a national emergency to deal with that threat.

The national emergency declared in E.O. 13338 was subsequently modified in scope and relied upon for additional steps in E.O.s 13399, 13460, 13572, 13573, 13582, 13606, and 13608, which were issued pursuant to, inter alia, IEEPA, and, among other things, blocked the property and interests in property that are or come within the United States or the possession or control of a U.S. person of the Government of Syria as well as of persons determined to meet certain criteria related to Syria, including persons engaged in human rights abuses. In addition, E.O. 13582 imposed new investment, services-related, and petroleum-related prohibitions involving Syria.

E.O. 13608. On May 1, 2012, the President, invoking the authority of, inter alia, IEEPA, issued E.O. 13608, in which he found that efforts by foreign persons to engage in activities intended to evade U.S. economic and financial sanctions with respect to Iran and Syria undermine our efforts to address the national emergencies declared in, among others, E.O. 13338, as modified in scope and relied on for additional steps in subsequent Executive orders, and took additional steps pursuant to these national emergencies.

Section 1(a) of E.O. 13608 authorizes the Secretary of the Treasury, in consultation with the Secretary of State, to impose the measures described in section 1(b) of E.O. 13608 on a foreign person upon determining that the foreign person: (i) has violated, attempted to violate, conspired to violate, or caused a violation of any license, order, regulation, or prohibition contained in, or issued pursuant to: (A) any Executive order relating to the national emergencies declared in E.O. 12957 of March 15, 1995, or in E.O. 13338 of May 11, 2004, as modified in scope in subsequent Executive orders; or (B) to the extent such conduct relates to property and interests in property of any person subject to United States sanctions concerning Iran or Syria, E.O. 13382 of June 28, 2005, any Executive order subsequent to E.O. 13382 of June 28, 2005, that relates to the national emergency declared in E.O. 12938 of November 14, 1994, or any Executive order relating to the national emergency declared in E.O. 13224 of September 23, 2001; (ii) has facilitated deceptive transactions for or on behalf of any person subject to United States sanctions concerning Iran or Syria; or (iii) is owned or controlled by, or is acting or purporting to act for or on behalf of, directly or indirectly, any person determined to meet the criteria set forth in section 1(a) of E.O. 13608.

Section 1(b) of E.O. 13608 describes the measures that the Secretary of the Treasury, in consultation with the Secretary of State, may impose on foreign persons determined to meet the criteria of section 1(a) of E.O. 13608. The measures that the Secretary of the Treasury may impose with respect to such foreign persons include prohibiting all transactions or dealings, whether direct or indirect, involving such person, including any exporting, reexporting, importing, selling, purchasing, transporting, swapping, brokering, approving, financing, facilitating, or guaranteeing, in or related to (i) any goods, services, or technology in or intended for the United States, or (ii) any goods, services, or technology provided by or to United States persons, wherever located.

In section 2 of E.O. 13608, the President determined that the making of donations of the type of articles specified in section 203(b)(2) of IEEPA (50 U.S.C. 1702(b)(2)), by, to, or for the benefit of any person subject to the measures described in section 1 of E.O. 13608, would seriously impair the President's ability to deal with the national emergency declared in E.O. The President therefore prohibited the donation of such items except to the extent provided by statutes, or in regulations, orders, directives, or licenses that may be issued pursuant to E.O. 13608.

Section 3 of E.O. 13608 provides that the prohibitions in section 1 of E.O. 13608 include the making of any contribution or provision of funds, goods, or services by, to, or for the benefit of any person subject to the measures described in E.O. 13608, and the receipt of any contribution or provision of funds, goods, or services from any such person.

Section 5 of E.O. 13608 prohibits any transaction by a U.S. person or within the United States that evades or avoids, has the purpose of evading or avoiding, causes a violation of, or attempts to violate any of the prohibitions set forth in E.O. 13608, as well as any conspiracy formed to violate such prohibitions.

Section 6 of E.O. 13608 provides that nothing in section 1 of E.O. 13608 shall prohibit transactions for the conduct of the official business of the United States government by employees, grantees, or contractors thereof.

Section 9 of E.O. 13608 authorizes the Secretary of the Treasury, in consultation with the Secretary of State, to take such actions, including the promulgation of rules and regulations, and to employ all powers granted to the President by IEEPA, as may be necessary to carry out the purposes of the order. This section also provides that the Secretary of the Treasury may redelegate any of these functions to other officers and agencies of the U.S. government.

Syria Human Rights Accountability Act of 2012 (SHRAA). On August 10, 2012, the President signed the SHRAA into law as Title VII of the Iran Threat Reduction and Syria Human Rights Act of 2012 (Pub. L. 112-158, Title VII, sec. 705, Aug. 10, 2012, 126 Stat. 1268.) (22 U.S.C. 8791 et seq. ). Among other things, the SHRAA requires the President to impose sanctions including blocking of property, subject to such regulations as the President may prescribe, on persons included in a report to Congress that the President determined, among other things: (i) are officials of the Government of Syria or persons acting on behalf of the Government of Syria who are responsible for or complicit in, or responsible for ordering, controlling, or otherwise directing, the commission of serious human rights abuses against citizens of Syria or their family members, regardless of whether such abuses occurred in Syria; (ii) on or after August 10, 2012, have knowingly engaged in the transfer, or the facilitation of the transfer, to Syria of goods or technologies that the President determines are likely to be used by the Government of Syria or any of its agencies or instrumentalities to commit human rights abuses against the people of Syria, including certain firearms and ammunition, law enforcement equipment, surveillance technology, or sensitive technology, or have knowingly provided services with respect to such goods or technologies after such goods or technologies are transferred to Syria, as well as successor entities and certain persons that own or control or are owned or controlled by such persons, even if not included in the report; or (iii) have engaged in censorship, or activities relating to censorship, in a manner that prohibits, limits, or penalizes the legitimate exercise of freedom of expression by citizens of Syria.

On October 9, 2012, the President delegated to the Secretary of the Treasury, in consultation with or at the recommendation of the Secretary of State, certain authorities with respect to the determinations and the imposition of IEEPA sanctions set out in the SHRAA. Further, the President delegated to the Secretary of State, in consultation with the Secretary of the Treasury, certain authorities with respect to the submission of reports set out in the SHRAA.

Countering America's Adversaries Through Sanctions Act. On August 2, 2017, the President signed CAATSA into law. Section 234(a) of CAATSA (22 U.S.C. 9528(a)), requires the President to impose sanctions, including blocking of property, on any foreign person determined by the President to, on or after August 2, 2017, have knowingly exported, transferred, or otherwise provided to Syria significant financial, material, or technological support that contributes materially to the ability of the Government of Syria to acquire or develop certain weapons or defense articles, as well as on any foreign person that is a successor entity to, is owned or controlled by, or has acted for or on behalf of, a foreign person sanctioned for engaging in such activities.

On September 29, 2017, the President delegated the functions and authorities vested in the President by section 234(a) of CAATSA to the Secretary of State and the Secretary of the Treasury, to be exercised commensurate with authorizations in previous Presidential actions. In addition, the President delegated the functions and authorities vested in the President by section 234(b)(1) of CAATSA (22 U.S.C. 9528(b)(1)), which sets forth the blocking of property as an available sanction, to the Secretary of the Treasury, in consultation with the Secretary of State.

Caesar Syria Civilian Protection Act of 2019. On December 20, 2019, the President signed the Caesar Act into law as Title LXXIV of the National Defense Authorization Act for Fiscal Year 2020 (Pub. L. 116-92, Div. F, Title LXXIV, 133 Stat. 2290 (22 U.S.C. 8791 note)). Among other things, section 7412 of the Caesar Act requires the President to impose sanctions, including blocking of property, on any foreign person determined by the President to knowingly, on or after June 17, 2020, engage in certain activities, including to knowingly provide significant financial, material, or technological support to, or knowingly engage in a significant transaction with, the Government of Syria, a senior political figure of the Government of Syria, a foreign person that is a military contractor, mercenary, or paramilitary force in certain cases, or a foreign person subject to U.S. sanctions laws with respect to Syria.

On March 31, 2020, the President delegated to the Secretary of the Treasury, in consultation with Secretary of State, certain authorities with respect to the determinations and the imposition of IEEPA sanctions set out in the Caesar Act.

OFAC is amending the Regulations to implement the provisions related to Syria of E.O. 13608, SHRAA, CAATSA, and the Caesar Act described above. In subpart B of the Regulations, which implements the prohibitions contained in the various Executive orders and statutes, OFAC is adding to § 542.201 the prohibitions set forth pursuant to sections 702 through 704 of the SHRAA; section 234 of CAATSA; section 7412 of the Caesar Act; and the prohibitions contained in any further Executive orders issued pursuant to the national emergency declared in E.O. 13338. In addition, OFAC is adding § 542.212 to the Regulations to implement the restrictions on foreign persons determined to be foreign sanctions evaders pursuant to sections 1 and 5 of E.O. 13608. Persons blocked pursuant to § 542.201, including persons blocked pursuant to the criteria being added to § 542.201 through this amendment, are referred to throughout the Regulations as “persons whose property and interests in property are blocked pursuant to § 542.201.” The names of persons designated or identified as blocked pursuant to § 542.201 are published on OFAC's Specially Designated Nationals and Blocked Persons List (SDN List), which is accessible via OFAC's website, and published in the Federal Register . The names of persons who are determined to be subject to the prohibitions of § 542.212 are published on OFAC's Foreign Sanctions Evaders (FSE) List, which is also accessible via OFAC's website, and published in the Federal Register . Also in subpart B, OFAC is adding to § 542.211 a paragraph that explains that the exemptions of the section do not apply to persons blocked pursuant to the authority of the United Nations Participation Act, as well as adding the exemption relating to the official business of the United States Government in section 6 of E.O. 13608 and the exemption relating to the importation of goods in section 7434 of the Caesar Act.

In subpart C of the Regulations, new definitions are being added for the terms “construction or engineering services,” “deceptive transaction,” “foreign person,” “knowingly,” “person subject to United States sanctions concerning Syria,” and “sensitive technology.” Because these new definitions were inserted in alphabetical order, the definitions that were in the prior set of regulations have been renumbered. In subpart D, which contains interpretive sections regarding the Regulations, § 542.405 has been renamed and updated to reflect that the receipt of services from a person whose property and interests in property are blocked pursuant to § 542.201 is also prohibited pursuant to § 542.201. OFAC is also adding two new interpretive sections: § 542.414 provides guidance on significant or significance; and § 542.415 clarifies that foreign persons will not be subject to sanctions pursuant to certain sections solely on the basis of a transaction for which a U.S. person would not require a specific license.

In subpart E, which sets forth general licenses and statements of licensing policy for transactions otherwise prohibited by the Regulations but found to be consistent with U.S. policy, OFAC is adding a new general license at § 542.534 to authorize any transaction prohibited pursuant to § 542.212 due to the involvement of a person determined to be subject to the prohibitions of § 542.212, to the same extent such transaction would be authorized for a person whose property and interests in property are blocked pursuant to § 542.201 by a general license issued pursuant to this part.

OFAC is also incorporating, in new § 542.533, Syria General License 22, which authorizes activities in certain economic sectors in non-regime held areas of northeast and northwest Syria and was previously issued only on OFAC's website. General License 22 was issued on May 12, 2022 and will be removed from OFAC's website upon publication of this rule.

OFAC is also updating the general license at § 542.511 for the export of certain services incident to internet-based communications to reflect changes in the technologies that underlie modern communication tools. These changes include listing additional technologies that are deemed incident to the exchange of communications over the internet and expanding the scope of the authorization to cover the exportation or reexportation of services incident to the exportation or reexportation of software or hardware incident to the exchange of communications over the internet. The authorization is also being updated to explicitly exclude the direct or indirect exportation of web-hosting services that are for websites of commercial entities located in Syria or of domain name registration services for or on behalf of the Government of Syria or a person whose property and interests in property are blocked pursuant to § 542.201. The updated § 542.511 also includes a statement of licensing policy providing a case-by-case review standard for applications for the exportation or reexportation of services, including services incident to the exportation or reexportation of software or hardware, that are incident to communications, involve the telecommunications sector, or that support internet freedom in Syria. Accordingly, OFAC is also removing the statement of licensing policy on activities related to the telecommunications sector that previously appeared at § 542.527 and reserving the section.

As a continuation of OFAC's efforts to ensure that humanitarian assistance and related trade continues to reach at-risk populations through legitimate and transparent channels, while maintaining the effective use of targeted sanctions, OFAC is amending two general licenses at §§ 542.513 and 542.516. In § 542.513, which authorizes official business of certain international organizations and entities, OFAC is removing the requirement that contractors or grantees must provide a copy of their contract or grant and identifying additional international organizations and entities covered. In § 542.516, which authorizes certain services in support of nongovernmental organizations' activities, OFAC is revising the authorization to align more closely with similar authorizations in other parts of 31 CFR chapter V.

OFAC is also revising general licenses at: § 542.507, to clarify that U.S. persons do not need to obtain specific authorization to provide services related to authorized legal services; § 542.508, to remove the requirements that U.S. persons provide a copy of the engagement letter to OFAC prior to receiving payment and submit quarterly reports, and to instead require U.S. persons to retain records of such payments for five years; and § 542.531, to align the authorization for emergency medical services with similar authorizations in other parts of 31 CFR chapter V.

OFAC is reissuing subpart G, Penalties, to add § 542.705, which describes Findings of Violations, and make other technical updates to the subpart (for example, to account for submission by email). OFAC is also reorganizing the part by moving §§ 542.601, 541.801, and 542.901 to subpart A, revising and moving § 542.802 to subpart A, renaming the subpart, reserving subpart F, and removing subparts H and I. Finally, throughout the part, OFAC is making technical and conforming updates to certain provisions and updating cross references.

Because the Regulations involve a foreign affairs function, the provisions of E.O. 12866 of September 30, 1993, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), and the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, opportunity for public participation, and delay in effective date are inapplicable. Because no notice of proposed rulemaking is required for this rule, the Regulatory Flexibility Act (5 U.S.C. 601-612) does not apply.

The collections of information related to the Regulations are contained in 31 CFR part 501 (the “Reporting, Procedures and Penalties Regulations”). Pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), those collections of information have been approved by the Office of Management and Budget under control number 1505-0164. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number.

For the reasons set forth in the preamble, OFAC amends 31 CFR part 542 as follows:

This document and additional information concerning OFAC are available on OFAC's website: https://ofac.treasury.gov.

On March 11, 2022, the President, invoking the authority of, inter alia, the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq. ) (IEEPA), issued Executive Order (E.O.) 14068, “Prohibiting Certain Imports, Exports, and New Investment With Respect to Continued Russian Federation Aggression” (87 FR 14381, March 15, 2022). Among other prohibitions, E.O. 14068 section 1(a)(i) prohibits the importation into the United States of the following products of Russian Federation origin: fish, seafood, and preparations thereof; alcoholic beverages; non-industrial diamonds; and any other products of Russian Federation origin as may be determined by the Secretary of the Treasury, in consultation with the Secretary of State and the Secretary of Commerce.

On December 22, 2023, the President, invoking the authority of, inter alia, IEEPA, issued E.O. 14114, “Taking Additional Steps With Respect to the Russian Federation's Harmful Activities” (88 FR 89271, December 26, 2023). Among other things, E.O. 14114 amends E.O.14068 by striking paragraph (a)(i) of section 1 and inserting, in lieu thereof, new language in subsections (a)(i)(A) through (D).

Section 1(a)(i)(A) of E.O. 14068 as amended prohibits the importation and entry into the United States, including importation for admission into a foreign trade zone located in the United States, of the following products of Russian Federation origin: fish, seafood, and preparations thereof; alcoholic beverages; non-industrial diamonds; and any other products of Russian Federation origin, as may be determined by the Secretary of the Treasury, in consultation with the Secretary of State and the Secretary of Commerce.

On April 6, 2022, the President, invoking the authority of, inter alia, IEEPA, issued E.O. 14071 of April 6, 2022, “Prohibiting New Investment in and Certain Services to the Russian Federation in Response to Continued Russian Federation Aggression” (87 FR 20999, April 8, 2022). Among other prohibitions, section 1(a)(ii) of E.O. 14071 prohibits the exportation, reexportation, sale, or supply, directly or indirectly, from the United States, or by a United States person, wherever located, of any category of services as may be determined by the Secretary of the Treasury, in consultation with the Secretary of State, to any person located in the Russian Federation.

On April 12, 2024, pursuant to delegated authority, the Director of OFAC, in consultation with the Department of State and the Department of Commerce, issued “Determination Pursuant to Section 1(a)(i)(A) of Executive Order 14068,” which determined that the prohibitions in section 1(a)(i)(A) of E.O. 14068 as amended shall apply to aluminum, copper, and nickel of Russian Federation origin.

Also on April 12, 2024, pursuant to delegated authority, the Director of OFAC in consultation with the Department of State issued “Determination Pursuant to Sections 1(a)(ii) of Executive Order 14071,” which determined that the prohibitions in section 1(a)(ii) of E.O. 14071 shall apply to the following categories of services: warranting services for aluminum, copper, or nickel of Russian Federation origin on a global metal exchange; and services to acquire aluminum, copper, or nickel of Russian Federation origin as part of physical settlement of a derivative contract (collectively, “Covered Metals Acquisition Services”).

Each determination was made available on OFAC's website ( https://ofac.treasury.gov ) when it was issued. The text of these determinations is below.

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. Given that the safety zone must be put into effect as soon as possible to offer protection from hazards associated with the search and rescue operations and salvage efforts related to the obstruction, lack sufficient time to provide notice, take comments, and consider those comments before issuing the rule.

In addition, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be contrary to the public interest because immediate action is needed to respond to the potential safety hazards associated with the gas leak and repair efforts related to a broken methane pipeline in the Gulf Intracoastal Waterway.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port, Sector Corpus Christi (COTP) has determined that potential hazards associated with the gas leak and repair efforts related to a broken methane pipeline require that vessel traffic be rerouted, from 11:59 a.m. on May 29, 2024 through 11:59 p.m. on June 12, 2024, to ensure safety of vessels and persons on these navigable waters until the search and rescue operations and salvage efforts concludes.

This rule establishes a temporary safety zone from 11:59 a.m. on May 29, 2024 through 11:59 p.m. on June 12, 2024. The safety zone encompasses all navigable waters of the Gulf Intracoastal Waterway within the following coordinates: 27°44′05″ N, 097°13′14″ W; 27°44′02″ N, 097°12′44″ W; 27°43′39″ N, 097°12′48″ W; 27°43′39″ N, 097°13′17″ W. No vessel or person is permitted to enter the temporary safety zone during the effective period without obtaining permission from the COTP or a designated representative, who may be contacted on Channel 16 VHF-FM (156.8 MHz) or by telephone at 1-800-874-2143. The Coast Guard will issue Broadcast Notices to Mariners, Local Notices to Mariners, and/or Safety Marine Information Broadcasts as appropriate.

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

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

This regulatory action determination is based on the size, location, and duration of the safety zone. The temporary safety zone will be enforced for a short period of only 15 days. The rule does not completely restrict the traffic within a waterway and allows mariners to request permission to enter the zone.

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

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

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

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

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

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

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, and Environmental Planning, COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule will encompass all navigable waters of the Gulf Intracoastal Waterway within the following coordinates: 27°44′05″ N, 097°13′14″ W; 27°44′02″ N, 097°12′44″ W; 27°43′39″ N, 097°12′48″ W; 27°43′39″ N, 097°13′17″ W. The safety zone is needed to protect personnel, vessels, and the marine environment from potential hazards created by the gas leak and repair efforts related to a broken methane pipeline in the Gulf Intracoastal Waterway. It is categorically excluded from further review under paragraph L60(c) Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1.

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

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

The Coast Guard will enforce the safety zones in 33 CFR 165.1125, for the above listed events under Table 1 of § 165.1125, for the 2024 4th of July Firework Displays. Our regulation for marine events within the Eleventh Coast Guard District, § 165.1125, specifies the location of the 1,000-foot safety zones for the 4th of July Firework displays. During the enforcement periods, as reflected in Table 1 of § 165.1125 if you are the operator of a vessel in the regulated area you must comply with directions from the Patrol Commander or any Official Patrol displaying a Coast Guard ensign.

In addition to this notification of enforcement in the Federal Register , the Coast Guard plans to provide notification of this enforcement period via marine information broadcasts and a Marine Safety Information Bulletin.

If the Captain of the Port Los Angeles—Long Beach determines that the safety zone need not to be enforced for the full duration stated in this notice, the Captain of the Port may use a Broadcast Notice to Mariners to reflect the change.

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to 5 U.S.C. 553(b). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. Space Exploration Technologies Corporation (SpaceX) will begin operation of its Starship/Super Heavy launch operations on June 5, 2024 and continue each day through June 17, 2024. There is insufficient time between now and then to provide notice of a proposal to create these safety zones, consider comments received, and publish a final rule.

In addition, the Coast Guard finds that good cause also exists under 5 U.S.C. 553(d)(3) for making this rule effective less than 30 days after publication in the Federal Register because the safety zones must be in effect in fewer than 30 days to serve their purpose and it would be contrary to the public interest to delay their effective date until after the hazardous activities begin.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port, Sector Corpus Christi (COTP) has determined that hazards inherent in rocket launching activity necessitate provisions to protect personnel, vessels, and the marine environment while it is taking place. The hazards inherent in SpaceX's rocket launching activities include the chance of being hit by free falling debris, descending vehicles or vehicle components.

This rule is subject to enforcement from 6 a.m. to noon, each day, from June 5, 2024 through June 17, 2024. No vessel or person will be permitted to enter the temporary safety zones during the period in which the rule is subject to enforcement without obtaining permission from the COTP or a designated representative, who may be contacted on Channel 16 VHF-FM (156.8 MHz) or by telephone at 361-939-0450. The Coast Guard will issue Broadcast Notices to Mariners, Local Notices to Mariners, and/or Safety Marine Information Broadcasts as appropriate.

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

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

This regulatory action determination is based on the size, location, and duration of the safety zones. The safety zones cover an area of the South Bay, TX approximately 4.5 square miles in size, and an area of the Gulf of Mexico, offshore of Boca Chica Beach, TX approximately 115 square miles in size. The temporary safety zones will be subject to enforcement for a period of 6 hours a day, from June 5, 2024 through June 17, 2024. The rule does not completely prohibit vessel traffic within the waterway and it allows mariners to request permission to enter the zones.

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

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

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

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

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

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

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves establishment of two temporary safety zones for navigable waters in the Gulf of Mexico and South Bay. The safety zones are needed to protect personnel, vessels, and the marine environment from potential hazards created by rocket launching activity that may include free falling debris and/or descending vehicles or vehicle components under various means of control. It is categorically excluded from further review under paragraph L60(c), in Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration is available for viewing in the docket. For instructions on how to locate it, see the section headed ADDRESSES , above.

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

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