I. Introduction and Background II. Summary of Final Rule III. Section-by-Section Analysis IV. Regulatory Review V. Congressional Notification VI. Approval by the Office of the Secretary of Energy I. Introduction and Background

DOE is publishing this final rule to update and clarify DOE's policies and procedures for determining eligibility for access authorizations. The current rule implements the requirement in Executive Order (E.O.) 12968, Access to Classified Information, that agencies promulgate regulations to provide review proceedings to individuals whose eligibility for access to classified information is denied or revoked.

The current rule has not been substantively updated since 2016 (81 FR 71331, Oct. 17, 2016). Since then, as various Executive orders, Security Executive Agent Directives, and the Federal Personnel Vetting Core Doctrine were issued and amended, DOE has gained additional implementation experience under the current rule, so proposed revisions to update and clarify provisions in the rule became appropriate.

On January 31, 2024, DOE published a notice of proposed rulemaking (NOPR) to propose the updating of part 710 (89 FR 6025). The NOPR proposed amending the existing rule to: (1) expand the scope of the current rule to include individuals applying for or in positions requiring eligibility to hold a sensitive position; (2) incorporate requirements of Security Executive Agent Directive (SEAD) 9, Appellate Review of Retaliation Regarding Security Clearances and Access Determinations, which provides appeal rights to both Federal and contractor employees; (3) update hearing procedures to more accurately reflect current practices; (4) update references to DOE offices and officials to reflect new titles and organizational names; (5) remove appendix A, SEAD 4, National Security Adjudicative Guidelines (June 8, 2017); (6) revise and add definitions for certain terms; and (7) make minor updates to improve clarity and delete obsolete references.

DOE had a 30-day comment period inviting public comments on the proposed regulatory changes, and no public comments were received.

As described, DOE's revisions to the existing rule are identical to those proposed in the NOPR. The final rule: (1) expands the scope of the current rule to include individuals applying for or in positions requiring eligibility to hold a sensitive position; (2) incorporates requirements of Security Executive Agent Directive (SEAD) 9, Appellate Review of Retaliation Regarding Security Clearances and Access Determinations, which provides appeal rights to both Federal and contractor employees; (3) updates hearing procedures to more accurately reflect current practices; (4) updates references to DOE offices and officials to reflect new titles and organizational names; (5) removes appendix A, SEAD 4, National Security Adjudicative Guidelines (June 8, 2017); (6) revises and adds definitions for certain terms; and (7) makes minor updates to improve clarity and delete obsolete references.

DOE amends title 10 of the Code of Federal Regulations (CFR) part 710 as follows:

1. The part heading of this part is amended to add, “OR ELIGIBILITY TO HOLD A SENSITIVE POSITION” at the end to reflect the expanded scope of the rule, as explained in paragraph 4.

2. The authority section of this part is amended to add a reference to E.O. 13467. Context for this change is explained in paragraph 4.

3. In § 710.1, “Purpose,” § 710.1(a) is amended to add at the end “or eligibility to hold a sensitive position pursuant to Executive Order 13467 (Reforming Processes Related to Suitability for Government Employment, Fitness for Contractor Employees, and Eligibility for Access to Classified National Security Information),” to reflect the change to the scope of the rule, as explained in paragraph 4. Section 710.1(b) is amended to add after the citation for E.O. 10865, “Executive Order 13467, 73 FR 38103 (June 30, 2008) as amended” and to add “or successor directive” after the reference to SEAD 4.

4. In § 710.2 “Scope,” a new paragraph is added to make the provisions of the rule applicable to an individual's eligibility to hold a sensitive position. This change clarifies that, except when specifically noted, any provision that applies to determinations of eligibility for access to classified information or special nuclear matter also applies to determinations of eligibility to hold a sensitive position. Conforming changes are also made in § 710.2.

In 2017, E.O. 13467, Reforming Processes Related to Suitability for Government Employment, Fitness for Contractor Employees, and Eligibility for Access to Classified National Security Information, was amended by E.O. 13764 to make the provisions of E.O. 12968 that apply to eligibility for access to classified information to also apply to eligibility to hold a sensitive position regardless of whether or not that sensitive position requires access to classified information.

The term “sensitive position” is defined in E.O. 13467, as amended, to mean any position within or in support of a Federal department or agency, the occupant of which could bring about, by virtue of the nature of the position, a material adverse effect on national security regardless of whether the occupant has access to classified information and regardless of whether the occupant is an employee, military service member, or contractor.

The scope of 10 CFR part 710 applied only to individuals who require eligibility for access to classified information and special nuclear materials and did not address individuals who require eligibility to hold a sensitive position where an access authorization is not a requirement of the position.

Expanding the applicability of this rule to individuals applying for or in positions requiring eligibility to hold a sensitive position, who do not require an access authorization, brings DOE into compliance with E.O. 13467, as amended.

5. Existing § 710.3, “Reference,” is deleted in its entirety because appendix A, SEAD 4, National Security Adjudicative Guidelines (June 8, 2017), is removed as explained in paragraph 22.

6. In § 710.4, “Policy,” § 710.4(a) is amended to add at the end “or eligibility to hold a sensitive position,” and § 710.4(b) is amended to add “or eligibility to hold a sensitive position” after “access authorization” to reflect the change to § 710.2 “Scope.”

7. In § 710.5, “Definitions,” there are a number of new or amended definitions.

The term “Continuous Vetting” is added to reflect recent national policies under Trusted Workforce (TW) 2.0, as explained in paragraph 8.

The term “Local Director of Security” is amended by removing the references to “Chicago” and “Oak Ridge,” and adding “for the Office of Science (SC), the individual designated in writing by the Deputy Director for Operations,” removing the references to Richland and Savannah River and adding “for the Office of Environmental Management (EM), the individual(s) designated in writing by the Senior Advisor, or delegee, adding an “s” after “individual” in the reference to the National Nuclear Security Administration, and adding “Security” in the title of the Naval Nuclear Propulsion Program. These changes reflect new titles and organization name changes since the last changes to this rule.

The term “Manager” is amended by removing the references to the Chicago Operations Office, the Oak Ridge Operations Office, and the “Director, Office of Headquarters Security Operations”. “Manager” is changed by adding “(to include the Office of River Protection)” in the reference to “Richland,” adding “for the Office of Environmental Management (EM), the individuals(s) designated in writing by the Senior Advisor, or delegee, adding “for the Office of Science (SC), the individual designated in writing by the Deputy Director for Operations,” adding “Security” in the title of the Naval Nuclear Propulsion Program, and adding “Director, Office of Headquarters Security Vetting” in place of “Director, Office of Headquarters Security Operations”. These changes reflect new titles and organization name changes.

The term “Sensitive Position” is added to reflect the expansion of the scope of the rule to apply to individuals applying for or in sensitive positions, consistent with E.O. 13467, as amended, as explained in paragraph 4.

8. In § 710.6, “Cooperation by the individual,” § 710.6(a)(1) is amended to add “continuous vetting” after “reinvestigation.” The Director of National Intelligence and the Director of the Office of Personnel Management, pursuant to their responsibilities as Executive Agents under E.O. 13467, as amended, launched the “Trusted Workforce 2.0” initiative to transform Federal personnel vetting programs. One of the changes included a transition from traditional periodic reinvestigations to government-wide continuous vetting. Paragraph (a)(1) also deletes “interviews” and adds in its place “consultations” for consistency with current DOE terminology. It also deletes “investigative activities” and adds in its place “actions” for consistency with current DOE terminology. The last sentence of paragraph (a)(1) is also amended to add the language “for incumbents” before “any access authorization then in effect may be administratively withdrawn” to clarify that the term “administratively withdrawn” applies to incumbents while “administratively terminated” applies to applicants. Paragraph (c) is amended to delete the words “his/her” and add in their place the word “their” for consistency with other DOE policies.

9. Section 710.7(d) is amended to delete “reports of investigation” and add in its place “investigative results report” for consistency with DOE and other Federal agency practices.

10. Section 710.8(a) is amended by removing references to an “interview” wherever it occurs and adding, in their place references to a “consultation” for consistency with current DOE terminology.

11. Section 710.9(e) is amended to reflect the requirements in SEAD 9, Appellate Review of Retaliation Regarding Security Clearances and Access Determinations. In 2022, the Director of National Intelligence issued SEAD 9, which established an appellate review process for employees who seek to appeal an adverse final agency determination with respect to alleged retaliatory action(s) taken by an employing agency affecting the employees' security clearance or access determination as a result of protected disclosures. SEAD 9 clarified that the agency review and appeal rights were available to both Federal and contractor employees. Therefore, paragraph (e) is amended to remove the words, “if the individual is a Federal employee,” and add language to address the appeal rights under SEAD 9. Paragraphs (e) and (f) are amended to delete the words, “his/her,” and add in their place the word “their” for consistency with other DOE policies.

12. Section 710.20 is amended to remove the word “interview” and add in its place the word “consultation” for consistency with current DOE terminology.

13. Section 710.21 is amended to delete from it the words “his/her” and add in their place the word “their” for consistency with other DOE policies. Paragraph (c)(1) is amended to add a requirement for the Manager to provide a copy of SEAD 4 or successor directive as part of the notification letter. Since appendix A, which currently contains SEAD 4, has been removed, this amendment would ensure that an individual going through administrative review under this part will receive a copy of the applicable adjudicative standards. Paragraph (c)(2) is amended to remove the words, “For Federal employees only”, and add language to reflect the requirements in SEAD 9, Appellate Review of Retaliation Regarding Security Clearances and Access Determinations, which extended appeal rights beyond Federal employees to include Federal contractors, as detailed in the explanation of changes to § 710.9(e), in paragraph 11.

14. Section 710.22(c)(4) is amended to clarify that the 30 days provided to the individual for requesting review of the Manager's initial decision is subject to any extensions granted by the Director under paragraph (c)(3).

15. Section 710.25(c) is amended to delete the words “his/her” and add in their place the words “their” for consistency with other DOE policies. Paragraph (e) is amended to delete language stating that hearings will normally be held at or near a DOE facility unless determined otherwise by the Administrative Judge and also to delete that the hearing location will be selected for all the participants' convenience. Paragraph (f) is amended to add language to clarify that conferences may be conducted by telephone, video teleconference, or other means as directed by the Administrative Judge. These changes to paragraphs (e) and (f) are made in order to conform to current agency practice.

16. Section 710.26(a) is amended to delete the words “his/her” and add in their place the words “their” for consistency with other DOE policies. Paragraph (d) is amended to delete language that requires the proponent of a witness to conduct the direct examination of their witness. This change is made because if an individual is represented by counsel, the individual's counsel will often conduct the direct examination of the individual's witnesses. However, when the individual is not represented by counsel, the individual may choose to allow DOE counsel to conduct the direct examination of the individual's witnesses. This change would align the regulation with current DOE practices, which provides the individual with flexibility in the conduct of direct examinations. In addition, the language in § 710.26(d), “[w]henever reasonably possible, testimony shall be given in person,” will be deleted to reflect the current practice that testimony is normally given live via video teleconference and not in-person.

17. Section 710.27(b) is amended to delete the word “handicapped” and add in its place the word “prejudiced” to reflect updated terminology.

18. Section 710.28(a)(4) is amended to delete the words “his/her” and add in their place the words “their” for consistency with other DOE policies.

19. Section 710.29(c) is amended to delete the words “his/her” and add in their place the word “their” to reflect updated terminology for consistency with other DOE policies.

20. In § 710.31, paragraphs (b)(4) through (b)(6) are amended to correct typographical errors made in the last substantive revision to this regulation. Specifically, paragraphs (b)(4) and (5) are amended to delete the language “provisions of § 710.31(2)” and add, in their place, “provisions of § 710.31(b)(2)” since § 710.31(2) does not exist in the rule and the correct reference should be to paragraph (b)(2), which describes the actions to be taken depending on whether a reconsideration request is approved. Paragraph (b)(6) is amended to delete the language “paragraphs (f) or (g)” and add, in their place, “paragraph (b)(4) or (5)”. There are no paragraphs (f) and (g) in § 710.31 and paragraph (b)(6) should reference §§ 710.31(b)(4) and (5), which describe the actions to be taken based on whether an individual is found to be eligible for access authorization. Paragraph (b)(6) is also amended to delete the language “set forth in paragraph (d)” and add, in its place, “set forth in paragraph (b)(2)” for the same reason explained previously. This change is made because there is no § 710.31(d) in the rule. The correct reference should be to § 710.31(b)(2).

21. Appendix A to Part 710—SEAD 4, National Security Adjudicative Guidelines (June 8, 2017) is deleted in its entirety. On October 17, 2016, DOE removed its adjudicative criteria from the regulation in order to rely solely on the national security adjudicative guidelines (81 FR 71331). As part of that rule, DOE added the entire text of the national security adjudicative guidelines to the regulation as appendix A. The intent behind adding appendix A was to provide the maximum transparency and notice to the public as to the applicable adjudicative criteria in determining eligibility for access to classified information. On December 4, 2017, this regulation was updated to include the latest version of the national security adjudicative guidelines, SEAD 4, which was issued by the Director of National Intelligence. Future updates to the National Security Adjudicative Guidelines are likely and DOE believes retaining appendix A, which may not reflect the latest updated version due to the time it takes to amend a regulation, may cause confusion to the public as to which version of the guidelines applies to their eligibility determination. Therefore, DOE is removing appendix A, SEAD 4, National Security Adjudicative Guidelines (June 8, 2017), and requiring that a copy of the applicable guidelines be provided to individuals as part of the notification letter, as stated in § 710.21(c)(1).

This final rule has been determined not to be a “significant regulatory action” under E.O. 12866, Regulatory Planning and Review, 58 FR 51735 (October 4, 1993) as supplemented and reaffirmed by E.O. 13563, “Improving Regulation and Regulatory Review,” 76 FR 3821 (Jan. 21, 2011) and amended by E.O. 14094, “Modernizing Regulatory Review”, 88 FR 21879 (April 11, 2023). Accordingly, this final rule is not subject to review under the E.O. by the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget (OMB).

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

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires preparation of an initial regulatory flexibility analysis for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. As required by E.O. 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” (67 FR 53461, August 16, 2002), DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the rulemaking process (68 FR 7990). DOE has made its procedures and policies available on the Office of the General Counsel's website at www.gc.doe.gov.

DOE has reviewed this rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. This rule amends procedures that apply to the determination of eligibility of individuals for access to classified information and access to special nuclear material. This rule applies to individuals, and does not apply to “small entities,” as that term is defined in the Regulatory Flexibility Act. In addition, as stated previously, DOE has no discretion in adopting the national policies; it is the national policies themselves that impose any impact on affected individuals. As a result, this rule would not have a significant economic impact on a substantial number of small entities.

Accordingly, DOE certifies that this rule would not have a significant economic impact on a substantial number of small entities, and, therefore, no regulatory flexibility analysis is required, and DOE has not prepared a regulatory flexibility analysis for this rulemaking. DOE's certification and supporting statement of factual basis will be provided to the Chief Counsel for Advocacy of the Small Business Administration for review under 5 U.S.C. 605(b).

This rule does not impose a collection of information requirement subject to the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

DOE has determined that this rule is covered under the Categorial Exclusion found in DOE's National Environmental Policy Act regulations at paragraph A5 of appendix A to subpart D, 10 CFR part 1021, which applies to a rulemaking that amends an existing rule or regulation and that does not change the environmental effect of the rule or regulation being amended. Accordingly, neither an environmental assessment nor an environmental impact statement is required.

E.O. 13132, “Federalism”, 64 FR 43255 (August 4, 1999), imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. DOE has examined this rule and has determined that it does not preempt State law and, if adopted, would not have a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. No further action is required by E.O. 13132.

The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally requires Federal agencies to examine closely the impacts of regulatory actions on State, local, and Tribal governments. Subsection 101(5) of title I of that law defines a Federal intergovernmental mandate to include any regulation that would impose upon State, local, or Tribal governments an enforceable duty, except a condition of Federal assistance or a duty arising from participating in a voluntary Federal program. Title II of that law requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments, in the aggregate, or to the private sector, other than to the extent such actions merely incorporate requirements specifically set forth in a statute. Section 202 of that title requires a Federal agency to perform a detailed assessment of the anticipated costs and benefits of any rule that includes a Federal mandate which may result in costs to State, local, or Tribal governments, or to the private sector, of $100 million or more in any one year (adjusted annually for inflation). 2 U.S.C. 1532(a) and (b). Section 204 of that title requires each agency that proposes a rule containing a significant Federal intergovernmental mandate to develop an effective process for obtaining meaningful and timely input from elected officers of State, local, and Tribal governments. 2 U.S.C. 1534. The rule expands the scope of the current rule with respect to individuals covered, makes updates and clarifications for consistency with national policies and DOE practices, updates references to DOE officials and offices, and makes minor updates to improve clarity and delete obsolete references. The rule would not result in the expenditure by State, local or Tribal governments in the aggregate, or by the private sector, of $100 million or more in any one year. Accordingly, no assessment or analysis is required under the Unfunded Mandates Reform Act of 1995.

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

E.O. 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to, OMB, a Statement of Energy Effects for any significant energy action. A “significant energy action” is defined as any action by an agency that promulgates or is expected to lead to promulgation of a final rule, and that: (1) is a significant regulatory action under E.O. 12866, or any successor order, and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. This regulatory action would not have a significant adverse effect on the supply, distribution, or use of energy and is therefore not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects.

The Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516, note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB.

OMB's guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). DOE has reviewed this rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.

As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of this rule prior to its effective date. The report will state that the rule does not meet the criteria set forth in 5 U.S.C. 804(2).

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

This document of the Department of Energy was signed on July 12, 2024, by Jennifer Granholm, Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

For the reasons set out in the preamble, DOE amends part 710 of title 10 of the Code of Federal Regulations as set forth below:

On July 5, 2022, Aerocon applied for a supplemental type certificate for the installation of a LDCRC in the Airbus Model A330-300 series airplane. The Airbus Model A330-300 series airplane is a twin-engine, transport-category airplane with a maximum takeoff weight of 533,518 pounds and maximum seating for 440 passengers.

Under the provisions of 14 CFR 21.101, Aerocon must show that the Airbus Model A330-300 series airplane, as changed, continues to meet the applicable provisions of the regulations listed in Type Certificate No. A46NM or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.

If the Administrator finds that the applicable airworthiness regulations ( e.g., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Airbus Model A330-300 series airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Airbus Model A330-300 series airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.

The Airbus Model A330-300 series airplane will incorporate the following novel or unusual design feature:

Installation of a LDCRC under the passenger cabin floor in the cargo compartment.

Section 25.819 applies to lower deck service compartments (including galleys) but is not directly applicable to LDCRC. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. Special conditions are required for the certification of the LDCRC to supplement part 25.

The LDCRC will be located under the passenger cabin floor in the cargo compartment of the Airbus A330-330 model series airplane. It will be removable from the cargo compartment. Occupancy of the LDCRC will be limited to a maximum of eight crew members, and it will only be occupied in flight, i.e., not during taxi, takeoff, or landing. A smoke detection system, fire extinguishing system, oxygen system, and occupant amenities will be provided.

The LDCRC will be accessed from the main deck via a stair house. The floor within the stair house has an access hatch that leads to stairs, which occupants use to descend into the LDCRC. This hatch locks automatically in the open position when fully opened. In addition, there will be an emergency hatch, which opens directly into the main passenger cabin area. The LDCRC also has a maintenance access/ground loading door, which allows access to and from the cargo compartment. The intended use of this door is to allow cargo loading and maintenance personnel to enter the LDCRC from the cargo compartment when the airplane is on the ground, and not moving.

The special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

The FAA issued Notice of Proposed Special Conditions No. 25-23-05-SC for the Airbus Model A330-300 series airplane, which was published in the Federal Register on December 13, 2023 (88 FR 86274).

The FAA received a response from B/E Aerospace Limited (B/E Aerospace).

B/E Aerospace requested the FAA revise special condition (p) (Materials) because it should put the requirement of 14 CFR 25.853(c) into context with the materials used in the construction of the mattress assembly ( e.g. “if more than insignificant amounts of [foam] are used”), because the final rule for § 25.853(c) Amendment 25-59 places emphasis on the materials used in the construction of seat cushion assemblies ( e.g. foams) as the primary reason for enhanced fire protection with fire blocking.

B/E Aerospace further states, since the special condition does not go into specific details regarding the construction of the mattress assembly, it is assumed that the proposed mattress assembly will include significant amounts of foam materials which should be shown to comply with the requirements § 25.853(c). If the proposed mattress assembly does not include foam materials (and is similar to a traditional coil-spring mattress with various fabric materials), the requirements of § 25.853(c) appear to be taken out of context with the intent of the standard.

The FAA disagrees with B/E Aerospace's comments. Section 25.853 does not make any distinction between “significant” and “insignificant” amounts of foam used in the mattress assembly. B/E Aerospace has not provided any arguments why “insignificant” or small quantities of foam, in the mattress assembly, would not be required to be shown to be compliant with the requirements of § 25.853(c). If any applicant has cushion materials that they believe should not be tested to the requirements of § 25.853(c), they always have the option of discussing the issue with the FAA and if warranted, an exemption or equivalent safety finding can be processed. No changes to the proposed rule wording is required. The special conditions are adopted as proposed.

As discussed above, these special conditions are applicable to the Airbus Model A330-300 series airplane for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would apply to the other model as well.

This action affects only certain novel or unusual design feature on one model A330-300 airplane. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Airbus Model A330-300 series airplanes as modified by Aerocon Engineering Company.

(a) Occupancy of the LDCRC is limited to a maximum of eight. There must be an approved seat or berth able to withstand the maximum flight loads when occupied for each occupant permitted in the crew rest compartment.

(1) There must be appropriate placards displayed in a conspicuous place at each entrance to the LDCRC compartment to indicate:

(i) The maximum number of occupants allowed.

(ii) That occupancy is restricted to crewmembers that are trained in the evacuation procedures for the crew rest compartment.

(iii) That occupancy is prohibited during taxi, take-off, and landing.

(iv) That smoking is prohibited in the crew rest compartment.

(v) That hazardous quantity of flammable fluids, explosives, or other dangerous cargo is prohibited from the crew rest compartment.

(vi) That the crew rest area must be limited to the stowage of crew personal luggage and must not be used for the stowage of cargo or passenger baggage.

(2) There must be at least one ashtray located conspicuously on or near the entry side of any entrance, usable in-flight, to the crew rest compartment.

(3) There must be a means to prevent passengers from entering the compartment in the event of an emergency or when no flight attendant is present.

(4) There must be a means for any door installed between the crew rest compartment and passenger cabin to be capable of being quickly opened from inside the compartment, even when crowding occurs at each side of the door.

(5) For all doors installed in the evacuation routes, there must be a means to preclude anyone from being trapped inside the compartment. If a locking mechanism is installed, it must be capable of being unlocked from the outside without the aid of special tools. The lock must not prevent opening from the inside of the compartment at any time.

(b) There must be at least two emergency evacuation routes, which could be used by each occupant of the crew rest compartment to rapidly evacuate to the main cabin and be able to be closed from the main passenger cabin after evacuation. In addition—

(1) The routes must be located with one at each end of the compartment, or with two having sufficient separation within the compartment and between the routes to minimize the possibility of an event (either inside or outside of the crew rest compartment) rendering both routes inoperative.

(2) The routes must be designed to minimize the possibility of blockage, which might result from fire, mechanical or structural failure, or persons standing on top of or against the escape route. If an evacuation route utilizes an area where normal movement of passengers occurs, it must be demonstrated that passengers would not impede egress to the main deck. If a hatch is installed in an evacuation route, the point at which the evacuation route terminates in the passenger cabin should not be located where normal movement by passengers or crew occurs (main aisle, cross aisle, passageway or galley complex). If such a location cannot be avoided, special consideration must be taken to ensure that the hatch or door can be opened when a person, the weight of a ninety-fifth percentile male, is standing on the hatch or door. The use of evacuation routes must not be dependent on any powered device. If there is low headroom at or near an evacuation route, provisions must be made to prevent or to protect occupants of the crew rest area from head injury.

(3) Emergency evacuation procedures, including the emergency evacuation of an incapacitated occupant from the crew rest compartment, must be established. All of these procedures must be transmitted to the operator for incorporation into their training programs and appropriate operational manuals.

(4) There must be a limitation in the airplane flight manual or other suitable means requiring that crewmembers be trained in the use of evacuation routes.

(c) There must be a means for the evacuation of an incapacitated person (representative of a 95th percentile male) from the crew rest compartment to the passenger cabin floor.

The evacuation must be demonstrated for all evacuation routes. A flight attendant or other crewmember (a total of one assistant within the crew rest area) may provide assistance in the evacuation. Additional assistance may be provided by up to three persons in the main passenger compartment. For evacuation routes having stairways, the additional assistants may descend down to one half the elevation change from the main deck to the lower deck compartment, or to the first landing, whichever is higher.

(d) The following signs and placards must be provided in the crew rest compartment:

(1) At least one exit sign, located near each exit, meeting the requirements of § 25.812(b)(1)(i) at Amendment 25-58, except that a sign with reduced background area of no less than 5.3 square inches (excluding the letters) may be utilized, provided that it is installed such that the material surrounding the exit sign is light in color ( e.g., white, cream, light beige). If the material surrounding the exit sign is not light in color, a sign with a minimum of a one-inch wide background border around the letters would also be acceptable.

(2) An appropriate placard located near each exit defining the location and the operating instructions for each evacuation route.

(3) Placards must be readable from a distance of 30 inches under emergency lighting conditions.

(4) The exit handles and evacuation path operating instruction placards must be illuminated to at least 160 micro lamberts under emergency lighting conditions.

(e) There must be a means in the event of failure of the aircraft's main power system, or of the normal crew rest compartment lighting system, for emergency illumination to be automatically provided for the crew rest compartment.

(1) This emergency illumination must be independent of the main lighting system.

(2) The sources of general cabin illumination may be common to both the emergency and the main lighting systems if the power supply to the emergency lighting system is independent of the power supply to the main lighting system.

(3) The illumination level must be sufficient for the occupants of the crew rest compartment to locate and transfer to the main passenger cabin floor by means of each evacuation route.

(4) The illumination level must be sufficient with the privacy curtains in the closed position for each occupant of the crew rest to locate a deployed oxygen mask.

(f) There must be means for two-way voice communications between crewmembers on the flight deck and occupants of the crew rest compartment. There must also be public address (PA) system microphones at each flight attendant seat required to be near a floor level exit in the passenger cabin per § 25.785(h) at Amendment 25-51. The PA system must allow two-way voice communications between flight attendants and the occupants of the crew rest compartment, except that one microphone may serve more than one exit provided the proximity of the exits allows unassisted verbal communication between seated flight attendants.

(g) There must be a means for manual activation of an aural emergency alarm system, audible during normal and emergency conditions, to enable crewmembers on the flight deck and at each pair of required floor level emergency exits to alert occupants of the crew rest compartment of an emergency situation. Use of a public address or crew interphone system will be acceptable, provided an adequate means of differentiating between normal and emergency communications is incorporated. The system must be powered in flight, after the shutdown or failure of all engines and auxiliary power units (APU), or the disconnection or failure of all power sources dependent on their continued operation ( i.e., engine & APU), for a period of at least ten minutes.

(h) There must be a means, readily detectable by seated or standing occupants of the crew rest compartment, which indicates when seat belts should be fastened. In the event there are no seats, at least one means must be provided to cover anticipated turbulence ( e.g., sufficient handholds). Seat belt type restraints must be provided for berths and must be compatible for the sleeping attitude during cruise conditions. There must be a placard on each berth requiring that seat belts must be fastened when occupied. If compliance with any of the other requirements of these special conditions is predicated on specific head location, there must be a placard identifying the head position.

(i) In lieu of the requirements specified in § 25.1439(a) at Amendment 25-38 that pertain to isolated compartments and to provide a level of safety equivalent to that which is provided occupants of a small, isolated galley, the following equipment must be provided in the crew rest compartment:

(1) At least one approved hand-held fire extinguisher appropriate for the kinds of fires likely to occur.

(2) Two protective breathing equipment (PBE) devices approved to Technical Standard Order (TSO)-C116 or equivalent, suitable for firefighting, or one PBE for each hand-held fire extinguisher, whichever is greater.

(3) One flashlight.

(j) A smoke or fire detection system (or systems) must be provided that monitors each occupiable area within the crew rest compartment, including those areas partitioned by curtains. Flight tests must be conducted to show compliance with this requirement. Each system (or systems) must provide:

(1) A visual indication to the flight deck within one minute after the start of a fire;

(2) An aural warning in the crew rest compartment; and

(3) A warning in the main passenger cabin. This warning must be readily detectable by a flight attendant, taking into consideration the positioning of flight attendants throughout the main passenger compartment during various phases of flight.

(k) The crew rest compartment must be designed such that fires within the compartment can be controlled without a crewmember having to enter the compartment, or the design of the access provisions must allow crewmembers equipped for firefighting to have unrestricted access to the compartment. The time for a crewmember on the main deck to react to the fire alarm, to don the firefighting equipment, and to gain access must not exceed the time for the compartment to become smoke-filled, making it difficult to locate the fire source.

(l) There must be a means provided to exclude hazardous quantities of smoke or extinguishing agent originating in the crew rest compartment from entering any other compartment occupied by crewmembers or passengers. This means must include the time periods during the evacuation of the crew rest compartment and, if applicable, when accessing the crew rest compartment to manually fight a fire. Smoke entering any other compartment occupied by crewmembers or passengers when the access to the crew rest compartment is opened, during an emergency evacuation, must dissipate within five minutes after the access to the crew rest compartment is closed.

(1) Hazardous quantities of smoke may not enter any other compartment occupied by crewmembers or passengers during subsequent access to manually fight a fire in the crew rest compartment (the amount of smoke entrained by a firefighter exiting the crew rest compartment through the access is not considered hazardous).

(2) There must be a provision in the firefighting procedures to ensure that all door(s) and hatch(es) at the crew rest compartment outlets are closed after evacuation of the crew rest compartment and, during firefighting to minimize smoke and extinguishing agent from entering other occupiable compartments.

(3) During the 1-minute smoke detection time, penetration of a small quantity of smoke from the crew rest compartment into an occupied area is acceptable. Flight tests must be conducted to show compliance with this requirement.

(4) If a built-in fire extinguishing system is used in lieu of manual firefighting, then the fire extinguishing system must be designed so that no hazardous quantities of extinguishing agent will enter other compartments occupied by passengers or crew. The system must have adequate capacity to suppress any fire occurring in the crew rest compartment, considering the fire threat, volume of the compartment and the ventilation rate.

(m) There must be a supplemental oxygen system equivalent to that provided for main deck passengers for each seat and berth in the crew rest compartment. The system must provide an aural and visual warning to warn the occupants of the crew rest compartment to don oxygen masks in the event of decompression. The warning must activate before the cabin pressure altitude exceeds 15,000 feet. The aural warning must sound continuously for a minimum of five minutes or until a reset push button in the crew rest compartment is depressed. Procedures for crew rest occupants in the event of decompression must be established. These procedures must be transmitted to the operator for incorporation into their training programs and appropriate operational manuals.

(n) The following requirements apply to crew rest compartments that are divided into several sections by the installation of curtains or partitions:

(1) To compensate for sleeping occupants, there must be an aural alert that can be heard in each section of the crew rest area compartment that accompanies automatic presentation of supplemental oxygen masks. A visual indicator that occupants must don an oxygen mask is required in each section where seats or berths are not installed. A minimum of two supplemental oxygen masks is required for each seat or berth. There must also be a means by which the oxygen masks can be manually deployed from the flight deck.

(2) A placard is required adjacent to each curtain that visually divides or separates, for privacy purposes, the crew rest area compartment into small sections. The placard must require that the curtain(s) remains open when the private section it creates is unoccupied.

(3) For each crew rest section created by the installation of a curtain, the following requirements of these special conditions must be met with the curtain open or closed:

(i) Emergency illumination (Special condition (e)).

(ii) Emergency alarm system (Special condition (g)).

(iii) Seat belt fasten signal or return to seat signal as applicable (Special condition (h)).

(iv) The smoke or fire detection system (Special condition (j)).

(4) Crew rest compartments visually divided to the extent that evacuation could be affected must have exit signs that direct occupants to the primary stairway exit. The exit signs must be provided in each separate section of the crew rest compartment and must meet the requirements of § 25.812(b)(1)(i) at Amendment 25-58. An exit sign with reduced background area as described in special condition (d)(1) may be used to meet this requirement.

(5) For sections within a crew rest compartment that are created by the installation of a partition with a door separating the sections, the following requirements of these special conditions must be met with the door open or closed:

(i) There must be a secondary evacuation route from each section to the main deck, or alternatively, it must be shown that any door between the sections has been designed to preclude anyone from being trapped inside the compartment. Removal of an incapacitated occupant within this area must be considered. A secondary evacuation route from a small room designed for only one occupant for short time duration, such as a changing area or lavatory, is not required. However, removal of an incapacitated occupant within this area must be considered.

(ii) Any door between the sections must be shown to be openable when crowded against, even when crowding occurs at each side of the door.

(iii) There may be no more than one door between any seat or berth and the primary stairway exit.

(iv) There must be exit signs in each section meeting the requirements of § 25.812(b)(1)(i) at Amendment 25-58 that direct occupants to the primary stairway exit. An exit sign with reduced background area as described in special condition (d).(1) may be used to meet this requirement.

(v) Special conditions (e) (emergency illumination), (g) (emergency alarm system), (h) (fasten seat belt signal or return to seat signal as applicable), and (j) (smoke or fire detection system) must be met with the door open or closed.

(vi) Special conditions (f) (two-way voice communication) and (i) (emergency firefighting and protective equipment) must be met independently for each separate section except for lavatories or other small areas that are not intended to be occupied for extended periods of time.

(o) Where a waste disposal receptacle is fitted, it must be equipped with a built-in fire extinguisher designed to discharge automatically upon occurrence of a fire in the receptacle.

(p) Materials (including finishes or decorative surfaces applied to the materials) must comply with the flammability requirements of § 25.853 at Amendment 25-66. Mattresses must comply with the flammability requirements of § 25.853(b) and (c) at Amendment 25-66.

(q) If a lavatory is installed, all lavatories within the crew rest are required to meet the same requirements as those for a lavatory installed on the main deck except with regard to special condition (j) for smoke detection.

(r) When a crew rest compartment is installed or enclosed as a removable module in part of a cargo compartment or is located directly adjacent to a cargo compartment without an intervening cargo compartment wall, the following applies:

(1) Any wall of the module (container) forming part of the boundary of the reduced cargo compartment, subject to direct flame impingement from a fire in the cargo compartment and including any interface item between the module (container), and the airplane structure or systems, must meet the applicable requirements of § 25.855 at Amendment 25-60.

(2) Means must be provided so that the fire protection level of the cargo compartment meets the applicable requirements of §§ 25.855 at amendment 25-60, 25.857 at amendment 25-60 and 25.858 at amendment 25-54 when the module (container) is not installed.

(3) Use of each emergency evacuation route must not require occupants of the crew rest compartment to enter the cargo compartment in order to return to the passenger compartment.

(4) The aural warning in special condition (g) must sound in the crew rest compartment in the event of a fire in the cargo compartment.

(s) Means must be provided to prevent access into the Class C cargo compartment during all airplane operations and to ensure that the maintenance door is closed during all airplane flight operations.

(t) All enclosed stowage compartments within the crew rest that are not limited to stowage of emergency equipment or airplane-supplied equipment ( e.g., bedding) must meet the design criteria given in the table below. As indicated by the table below, this special condition does not address enclosed stowage compartments greater than 200 ft 3 in interior volume. The in-flight accessibility of very large, enclosed stowage compartments and the subsequent impact on the crewmember's ability to effectively reach any part of the compartment with the contents of a hand fire extinguisher will require additional fire protection considerations similar to those required for inaccessible compartments such as Class C cargo compartments.

Table of Contents I. Executive Summary A. Overview of Regulatory Action C. Summary of the Costs and Benefits II. Authority for This Rulemaking III. Background A. History D. AD 95-11-09 (R-22) and AD 95-11-10 (R-44) Low G Cyclic Pushover Prohibition Background C. Summary of the Notice of Proposed Rulemaking D. General Overview of Comments IV. Discussion of Comments and the Final Rule A. Support for the Rule B. Suggested Changes to the Rule V. Regulatory Notices and Analyses A. Regulatory Impact Analysis B. Regulatory Flexibility Act C. International Trade Impact Assessment D. Unfunded Mandates Assessment E. Paperwork Reduction Act F. International Compatibility G. Environmental Analysis VI. Executive Order Determinations A. Executive Order 13132, Federalism B. Executive Order 13175, Consultation and Coordination With Indian Tribal Governments C. Executive Order 13211, Regulations That Significantly Affect Energy Supply, Distribution, or Use D. Executive Order 13609, Promoting International Regulatory Cooperation VII. Additional Information A. Electronic Access and Filing B. Small Business Regulatory Enforcement Fairness Act I. Executive Summary A. Overview of Regulatory Action

Special Federal Aviation Regulation (SFAR) No. 73, found in part 61 of title 14 of the Code of Federal Regulations, addresses Robinson Helicopter Company R-22 and R-44 special training and experience requirements. SFAR No. 73 currently requires flight training on the effects of low gravity (low G) maneuvers and proper recovery procedures. However, because of the inherent danger in performing low gravity maneuvers, Airworthiness Directives 95-11-09  1 and 95-11-10  2 prohibit intentionally inducing low gravity flight in Robinson Helicopter Company model R-22 and R-44 helicopters, contrary to certain requirements in the current SFAR requiring dual instruction (flight instruction) on the effects of low G maneuvers and proper recovery procedures. Therefore, this final rule removes the requirement in the SFAR to perform low gravity maneuvers during flight training due to safety concerns. However, low gravity hazards will continue to be addressed in ground training. Additionally, this final rule replaces the term “awareness training” with “ground training.”

Additionally, this final rule updates SFAR No. 73 to align its terminology with other regulations and publications. Certain terminology used in the current SFAR is neither defined nor used in the same context as found in the Helicopter Flying Handbook (HFH), 3 Airman Certification Standards, Practical Test Standards, 4 and part 61. Specifically, updating the terms “awareness,” “certified/certificated flight instructor,” and “blade stall” provides consistency with part 61 terms and definitions without impacting preexisting requirements. In addition, the final rule replaces the term “enhanced” with more specific language detailing how to satisfy autorotation training in an R-22 and/or R-44 helicopter. The terminology changes do not require updates to endorsements, websites, or other publications.

Further, this final rule aligns certain provisions pertaining to applicability, ground training, and flight reviews. First, this rulemaking revises the applicability section in SFAR No. 73 by including applicability to flight instructors who conduct ground training, flight training, or a flight review. Second, the final rule clarifies the current model applicability endorsement within the ground training requirements. Third, this final rule refines the formatting of the aeronautical experience flight review requirements for less experienced pilots.

Finally, this final rule adds a five-year expiration date to SFAR No. 73. This allows the Federal Aviation Administration (FAA) time to review and refine the requirements for R-22 and R-44 helicopters for eventual movement into a permanent location in title 14 of the Code of Federal Regulations, chapter I.

To note, this final rule does not impose any additional requirements to the current regulations and practice, nor does it render current requirements less restrictive. Rather, the changes more clearly identify the current requirements for persons seeking to manipulate the flight controls, act as pilot in command, provide ground training or flight training, or conduct a flight review in a Robinson Helicopter Company model R-22 or R-44 helicopter that are unique to SFAR No. 73, and are not otherwise included in part 61.

After reviewing the comments received on the NPRM, the FAA did not make any changes to the final rule.

The final rule promotes safety without imposing costs by clarifying existing requirements, eliminating inconsistencies, and updating language. Thus, the FAA has determined that this final rule will have minimal economic effects.

The FAA's authority to issue rules on 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 the scope of the FAA's authority.

This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart iii, section 44701, General Requirements. Under these sections, the FAA prescribes regulations and minimum standards for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This rulemaking is within the scope of that authority.

The regulation at 14 CFR part 61 provides certification requirements for pilots, flight instructors, and ground instructors. Subparts C through G of part 61 contain training requirements for applicants seeking rotorcraft category and helicopter class ratings. These requirements do not address specific types or models of rotorcraft. However, in 1995, the FAA determined that specific training and experience requirements were necessary for the safe operation of Robinson Helicopter Company (Robinson) model R-22 and R-44 helicopters. 5   6

The R-22 helicopter is a two-seat, reciprocating engine-powered helicopter frequently used in initial student pilot training. The R-22 is one of the smallest helicopters in its class and incorporates a unique cyclic control and teetering rotor system. The R-44 is a four-seat helicopter with operating characteristics and design features that are similar to the R-22. Certain aerodynamic and design features of these aircraft result in specific flight characteristics that require particular pilot knowledge and responsiveness to operate these models safely. 7

The FAA issued a type certificate to Robinson in 1979. However, as explained in the 1995 final rule, the R-22 had a high number of fatal accidents due to main rotor/airframe contact when compared to other piston powered helicopters. In its analysis of accident data, the FAA found that many of those accidents were attributed to pilot performance or inexperience, where low rotor revolutions per minute (RPM) or low G conditions caused mast bumping or main rotor-airframe contact accidents.

Therefore, the FAA determined additional specific pilot training was necessary for the safe operation of these helicopters as part of a comprehensive program that responded to a high number of accidents. 8 Furthermore, the R-44 had also been recently certified, and the FAA was concerned that the R-44 would experience the same frequency of accidents because of its similar design to the R-22. Accordingly, the FAA issued SFAR No. 73, which addressed pilot training and requirements for flight instructors and continued flight reviews in the specific model to be flown. 9

While accidents in the R-22 and R-44 helicopters have declined markedly since SFAR No. 73 was issued, the NTSB recommended the FAA ensure that SFAR No. 73, the Flight Standards Board specifications, and the Airworthiness Directives (ADs) applicable to the operation of the R-22 and R-44 be made permanent. 10 According to a special investigation report the NTSB issued on April 2, 1996, the special operating rules for flight instructors and students and low-experience and non-proficient pilots must continue to ensure the safe operation of these helicopter models.

As discussed in the NPRM, 11 in 2021, the FAA formed a Safety Risk Management (SRM) Team to perform an assessment of SFAR No. 73 to, first, analyze hazards associated with operating and training pursuant to SFAR No. 73 and, second, to determine whether the SFAR effectively controls risk or is no longer needed. The SRM Team's analysis resulted in six proposed modifications of the Robinson Helicopter R-22 and R-44 Special Training and Experience Requirements, which may be found in the docket to this rulemaking. 12 The SRM recommended the FAA: determine which elements of SFAR No. 73 currently mitigate hazards and should be retained or are no longer required; develop permanent regulatory requirements; determine actions required for SFAR 73 requirements that are not captured in rulemaking; ensure implementation of the SRM recommendations consider limitation in AD 95-26-04;  13 add an expiration date to the SFAR (should it remain in place); and, perform a gap analysis of the SFAR and the SRM recommendations. The SRM recommendation regarding the development of permanent regulatory requirements specifies that changes made to experience and endorsements be driven by the evaluation of data related to the instructor requirements, solo experience, and pilot-in-command (PIC) requirements for the Robinson R-44 model. 14 Although the SRM process is separate, some of the SRM Team's assessment has supported this rulemaking effort, which is reflected in this final rule. Items that would impact substantive requirements for special training or experience established by this SFAR do not fall under the scope of this rulemaking.

Since SFAR No. 73 was published, Robinson model R-22 and R-44 helicopters have continued to operate throughout the world. Although other international civil aviation authorities have taken different approaches to implementing pilot certification standards, Robinson makes advisory material and safety alerts available to all operators worldwide. 15 Additionally, safety notices, available both in the Pilot's Operating Handbook/Rotorcraft Flight Manual (POH/RFM)  16 and on the Robinson website, emphasize subject matter found in SFAR No. 73. Although these notices are not regulatory in nature, they provide guidance and recommended practices to operators for all Robinson helicopters.

SFAR No. 73 consists of ground and flight training requirements, including low G flight training. 17 However, shortly after the initial adoption of the SFAR in 1995, the FAA prohibited intentionally inducing low G flight in R-22 and R-44 helicopters due to the inherent risk in performing those maneuvers through ADs 95-11-09 (R-22)  18 and 95-11-10 (R-44). 19 That action was prompted by FAA analysis of the manufacturer's data that indicated a low G cyclic pushover maneuver may result in mast-bumping on the Robinson model R-22 helicopters. If uncorrected, this condition could result in an in-flight main rotor separation or contact between the main rotor blades and the airframe of the helicopter and subsequent loss of control of the helicopter. The FAA found this condition could also occur in a Robinson model R-44 helicopter due to the similar operating characteristics and design features. The ADs require the installation of placards in the helicopter and the insertion of a prohibition against low G cyclic pushover maneuvers into the limitations section of the RFM/POH.

On October 17, 2023, the FAA published an NPRM that proposed to update SFAR No. 73, Robinson R-22/R-44 Special Training and Experience Requirements, to provide consistency with other FAA regulatory requirements, training, and testing publications. 20 Specifically, the NPRM proposed to remove the low G dual flight instruction requirement to align the SFAR with current aircraft placard requirements and the limitations section of the RFM/POH set forth by ADs. Although the FAA proposed to remove the requirement for flight training on the effects of low G maneuvers and proper recovery procedures under paragraph 2(b) of SFAR No. 73 (aeronautical experience), the FAA proposed to continue to require low G maneuvers and proper recovery procedures as a ground training (currently referred to as “awareness training”) subject area under paragraph 2(a)(3).

The NPRM also proposed to update the SFAR to mirror the terminology currently used in part 61, the Helicopter Flying Handbook, Airman Certification Standards, and Practical Test Standards. First, paragraph 2(a) of SFAR No. 73 currently uses the term “awareness training” to distinguish ground training requirements from aeronautical experience requirements, which does not have a part 61 definition. Conversely, ground training is defined in § 61.1(b) as “training, other than flight training, received from an authorized instructor.” Therefore, the FAA proposed to replace the term “awareness training” in paragraph 2(a) with “ground training.”  21

Second, part 61 does not define the term “enhanced.” In the context of the SFAR, the FAA intends “enhanced” to mean different autorotation iterations. However, the term lacks sufficient specificity to adequately inform the regulated community what autorotation maneuvers are expected to be performed. 22 Therefore, the FAA proposed to remove the term “enhanced” from paragraphs 2(b)(1)(ii), 2(b)(2)(ii), 2(b)(3) and (4), and 2(b)(5)(iii) of the SFAR and clarify it with language specifying that the training must include autorotation procedures and energy management, including utilizing a combination of flight control inputs and maneuvering to prevent overshooting or undershooting the selected landing area from an entry altitude that permits safe recovery. As discussed in the NPRM, the R-22 training differs slightly from the R-44 training because the RFM/POH does not provide information for airspeed and main rotor revolutions per minute to perform an autorotation minimum rate of descent configuration, whereas the R-44 flight manual establishes those flight parameters. 23 The FAA proposed that the new sections will require flight training to include autorotations at an entry altitude that permits safe maneuvering and recovery utilizing maximum glide configuration for the Robinson model R-22 and R-44 helicopter and minimum rate of descent configuration for the Robinson model R-44 helicopter.

Third, the terminology “low rotor RPM (blade stall)” is currently identified as a ground training topic in paragraph 2(a)(3)(iii). This ground training topic places blade stall in parentheticals, which could suggest that low rotor RPM and blade stall are synonymous. However, they are different topics; low RPM is the onset of the emergency, and stall is the state at which the aircraft becomes unrecoverable. Therefore, the NPRM proposed to remove the parentheticals and label this ground topic as “low rotor RPM and rotor stall” to better align SFAR No. 73 terminology with the HFH. 24

Finally, the NPRM proposed to remove the terms “certified” and “certificated” from SFAR No. 73 when used to describe flight instructors. The FAA proposed using flight instructor authorization requirements specific to SFAR No. 73, paragraph 2(b)(5)(iv), throughout the SFAR, where appropriate.

The NPRM also proposed to clarify the annual flight review requirements for less experienced pilots ( i.e., those pilots who have not had at least 200 flight hours in helicopters, at least 50 of which were in the Robinson model R-22 or R-44, as applicable). 25 Such flight review requirements are currently identified in paragraphs 2(b)(1)(ii) and 2(b)(2)(ii) of the SFAR and are grouped together in the same paragraph that describes the general pilot-in-command flight training. The annual flight review conditions for less experienced pilots in this grouping are not clearly stated or easily discernable from the general pilot-in-command flight training. Furthermore, these flight review requirements do not specify which subjects less experienced pilots must accomplish to satisfy the ground training portion of the flight review. To resolve these issues, the FAA proposed to move the annual flight review requirements located in paragraphs 2(b)(1)(ii) and 2(b)(2)(ii) for that specified group of pilots to separate paragraphs 2(b)(1)(iii) and 2(b)(2)(iii) and identify the general subject areas (from current awareness training, now required ground training) and the associated abnormal and emergency procedures. The FAA noted in the NRPM that the change would not impact the flight review requirements outlined in paragraph 2(c) (other than conforming editorial revisions).

Additionally, the NPRM proposed three revisions largely editorial in nature. First, the FAA proposed to remove the long-expired compliance dates in paragraphs 2(a)(1), (2), and (4). Next, the FAA proposed to update the applicability section in paragraph 1 to include persons who provide ground and flight training and who conduct a flight review in a Robinson R-22 or R-44 helicopter. Finally, the FAA proposed to add an expiration date to the SFAR to allow the FAA time to review and refine the R-22 and R-44 requirements set forth in this SFAR before permanent codification.

In response to public comments received on or before the comment period closed on December 18, 2023, the FAA finds the proposed revisions to the regulations sufficient to achieve the goal of the rulemaking, which is to update and clarify the SFAR. This preamble subsequently responds to comments, and this final rule adopts the NPRM's proposal without changes.

The FAA received and considered five comments on the NPRM, consisting of comments from Robinson, Helicopter Association International (HAI), 26 and three individuals. A majority of the commenters supported the rule, which included three commenters expressing support in addition to proposing changes. Two individual commenters neither supported nor opposed the rule, however, one of these commenters provided a suggestion. None of the commenters opposed the proposed rule.

The majority of commenters expressed support for the NPRM's proposed changes to SFAR No. 73. HAI agreed with the modifications as proposed and reiterated that the proposal would eliminate the conflict between the low G flight requirements in SFAR No. 73 and ADs 95-11-09 and 95-11-10. HAI also supported the proposed five-year expiration date for SFAR No. 73 with the understanding that its content will eventually be moved to a permanent location in Title 14. HAI provided recommendations pertaining to analyses and reviews to inform the FAA's future permanent rulemaking, which is subsequently discussed in section IV.B of this preamble.

Robinson stated that the NPRM provides a number of necessary revisions to clarify requirements and opined on the SRM Team assessment, which is subsequently discussed in section IV.B of this preamble. An individual commenter also agreed with the proposal but stated that the training requirement for the R22 and R44 as promulgated by the original SFAR should only have required low G avoidance rather than requiring low G maneuvers to be conducted on purpose. While this recommendation neither supports nor opposes the proposed rule, the FAA finds that the revisions as set forth in this rulemaking align with the commenter's statement ( i.e., not conducting low G maneuvers purposefully in flight). Additionally, another individual commenter specifically agreed with the proposed removal of effects of low G maneuvers and proper recovery procedures from flight training requirements. This commenter further suggested those concepts be added to the ground training topics set forth in paragraph 2(a) (currently termed “awareness training”); the FAA notes such changes were already proposed in the NPRM.

Three commenters suggested changes to the proposed regulatory text, asked specific questions, or made related recommendations.

An individual commenter stated that a flight instructor authorized to provide training outlined in SFAR No. 73 should not be required to complete two flight reviews in the R-22 and R-44 every two years. The commenter further commented that this issue should be addressed after the SFAR expires, if not sooner. The FAA interprets the commenter as disagreeing with the current model-specific flight review requirements for those who are eligible to function as PIC in the R-22 and/or R-44, found in paragraph 2(c) of the SFAR. To operate as PIC in either the R-22 or R-44, paragraph 2(c) requires a model-specific flight review, which includes satisfying applicable requirements in § 61.56, ground training outlined in paragraph 2(a)(3), and flight training in abnormal and emergency procedures required by paragraph 2(b) for the appropriate model aircraft. Flight instructor experience conducting training in an R-22 or R-44 helicopter does not replace the flight review requirements as described in paragraph 2(c) that provide for regular assessment of pilot skills and aeronautical knowledge to act as PIC.

As discussed in the NPRM to this rule and original rulemaking for the SFAR, all pilots, regardless of their level of experience, must have a greater awareness of the flight conditions that have led to main rotor/airframe contact accidents in Robinson model R-22 and R-44 helicopters and have the capability to respond appropriately when those conditions are encountered. 27 Supplemental analysis, including by the FAA Flight Standardization Board (FSB)  28 29 and by the NTSB, 30 supports model-specific flight reviews as necessary for the Robinson model R-22 and R-44 helicopters to ensure pilots maintain proficiency and competency over time. A flight instructor who is also acting as PIC of a Robinson model R-22 and/or R-44 helicopter must comply with the model-specific flight review requirements established in paragraph 2(c). Given the accident history of the R-22 and R-44 and the lack of any changed information to support the elimination of model-specific flight reviews ( i.e., two separate flight reviews for those persons who seek to instruct and may act as PIC in both the R-22 and R-44 helicopter), the FAA will not adopt the recommendation to remove model-specific flight review requirements.

In addition to generally agreeing with the NPRM, Robinson's comment also noted general concerns with their lack of involvement in the SFAR No. 73 rulemaking process and the rationale of proposing to integrate only some of the SRM Team's recommendations. 31 Specifically, Robinson noted a lack of explanation as to why, first, certain recommendations from the safety risk assessment were included in the NPRM while others were not and, second, why Robinson's request to remove the R-44 from SFAR No. 73 requirements, as noted in the SRM report, was not incorporated into the rulemaking. This rulemaking was not intended to implement all recommendations set forth by the SRM Team. The SRM Team's recommendations that would change required specialized training and experience ( i.e., substantive revisions to the SFAR), including modifications to the requirements for the Robinson model R-44 helicopter, are identified in the SRM report as items to assess during the development of permanent requirements. Conversely, the FAA undertook this rulemaking to adopt recommendations that would not substantively change the current training and experience regime as the first step in a tiered, long-term revision to the SFAR. Specifically, as previously stated, the FAA intends the five-year time period (as promulgated by the expiration date added to the SFAR in this final rule) to allow the FAA time to review and refine the R-22 and R-44 requirements for ground training, aeronautical experience, including flight training, and flight reviews. Therefore, the FAA will not make any changes to the final rule resulting from Robinson's recommendation.

Lastly, HAI recommended that the FAA immediately establish an appropriate government or industry body tasked with providing research and recommendations informing the FAA's plan to review or revise current R-22 and R-44 requirements, to sunset SFAR No. 73, and to move the applicable requirements to a permanent location in title 14. Specifically, HAI recommended the FAA either charter a Robinson Model R-22 and R-44 helicopter training and experience Aviation Rulemaking Committee  32 or task the Aviation Rulemaking Advisory Committee  33 with establishing an industry working group. The FAA acknowledges that these are possible options to evaluate requirements for Robinson model R-22 and R-44 helicopters for future rulemaking. The scope of this final rule is solely to clarify and update current requirements in SFAR No. 73. The FAA will not make any changes to the final rule based on this recommendation.

Federal agencies consider impacts of regulatory actions under a variety of executive orders and other requirements. First, Executive Order 12866 and Executive Order 13563, as amended by Executive Order 14094 (“Modernizing Regulatory Review”), direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify the costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. The current threshold after adjustment for inflation is $183 million using the most current (2023) Implicit Price Deflator for the Gross Domestic Product. This portion of the preamble summarizes the FAA's analysis of the economic impacts of this rule.

In conducting these analyses, the FAA has determined that this rule: will result in benefits that justify costs; is not a “significant regulatory action” as defined in section 3(f) of Executive Order 12866, as amended; will not have a significant economic impact on a substantial number of small entities; will not create unnecessary obstacles to the foreign commerce of the United States; and will not impose an unfunded mandate on State, local, or tribal governments, or on the private sector.

This final rule removes a flight training requirement from SFAR No. 73 that cannot be currently performed in the aircraft because it is inconsistent with Airworthiness Directives (ADs) related to Robinson model R-22 and R-44 helicopters. It is current practice not to perform the flight training maneuver notwithstanding the regulatory requirement in the SFAR; therefore, the change imposes no new cost. The FAA expects the final rule to promote safety without imposing costs by clarifying requirements, eliminating inconsistencies, and updating language.

The rule is needed to resolve a contradiction between SFAR No. 73, which requires low G maneuvers during flight training for Robinson R-22 and R-44 helicopters, and subsequent ADs that prohibit low G cyclic pushover maneuvers in these aircraft. The FAA originally promulgated SFAR No. 73 in 1995 in response to a series of fatal accidents attributed to pilot inexperience resulting in main rotor and airframe contact. To address these safety concerns, SFAR No. 73 established special awareness training, aeronautical experience, endorsement, and flight review requirements for pilots operating Robinson R-22 and R-44 helicopters. However, within months, the FAA issued ADs requiring the insertion of limitations in the rotorcraft flight manual and aircraft placards prohibiting low G cyclic pushover maneuvers. The final rule removes the requirement for low G maneuvers during in-flight training from SFAR No. 73 while continuing ground training related to low G conditions and proper recovery procedures. The final rule makes other conforming changes to improve clarity and consistency without creating new information collections or requiring immediate changes to current industry or FAA publications and documents.

Based on this information, the FAA has determined that the final rule will have minimal economic effects.

The Regulatory Flexibility Act (RFA) of 1980 (5 U.S.C. 601-612), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121) and the Small Business Jobs Act of 2010 (Pub. L. 111-240), requires Federal agencies to consider the effects of the regulatory action on small business and other small entities and to minimize any significant economic impact. The term “small entities” comprises small businesses, and 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.

Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA. However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination with a reasoned explanation.

The final rule applies most directly to providers of training for Robinson model R-22 and R-44 helicopters. Some of these training providers are small entities. However, the final rule does not impose new burdens. The final rule aligns SFAR No. 73 with current practice and Airworthiness Directives (ADs) related to Robinson model R-22 and R-44 helicopter training requirements. Total training hours remain the same. The final rule also updates language and makes other conforming changes to improve clarity and consistency regarding training for Robinson model R-22 and R-44 helicopters without imposing new recordkeeping or other requirements.

If an agency determines that a rulemaking will not result in a significant economic impact on a substantial number of small entities, the head of the agency may so certify under section 605(b) of the RFA. Therefore, the FAA certifies that the rule will not have a significant economic impact on a substantial number of small entities.

The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards.

The FAA has assessed the potential effect of this final rule and determined that the rule responds to a domestic safety objective. The FAA has determined that this rule is not considered an unnecessary obstacle to trade.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government having first provided the funds to pay those costs. The FAA determined that the rule will not result in the expenditure of $183 million or more by State, local, or tribal governments, in the aggregate, or the private sector, in any one year. This rule does not contain such a mandate; therefore, the requirements of Title II of the Act do not apply.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. The FAA has determined that there is no new requirement for information collection associated with this final rule.

In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has determined that there are no ICAO Standards and Recommended Practices that correspond to these regulations.

FAA Order 1050.1F identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act (NEPA) in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 5-6.6f for regulations and involves no extraordinary circumstances.

The FAA has analyzed this final rule under the principles and criteria of Executive Order (E.O.) 13132, Federalism. The FAA has determined that this action will not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, will not have federalism implications.

Consistent with Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, 34 and FAA Order 1210.20, American Indian and Alaska Native Tribal Consultation Policy and Procedures, 35 the FAA ensures that Federally Recognized Tribes (Tribes) are given the opportunity to provide meaningful and timely input regarding proposed Federal actions that have the potential to have substantial direct effects 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; or to affect uniquely or significantly their respective Tribes. At this point, the FAA has not identified any unique or significant effects, environmental or otherwise, on tribes resulting from this final rule.

The FAA analyzed this final rule under E.O. 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). The FAA has determined that it will not be a “significant energy action” under the executive order and would not be likely to have a significant adverse effect on the supply, distribution, or use of energy.

Executive Order 13609, Promoting International Regulatory Cooperation, promotes international regulatory cooperation to meet shared challenges involving health, safety, labor, security, environmental, and other issues and to reduce, eliminate, or prevent unnecessary differences in regulatory requirements. The FAA has analyzed this action under the policies and agency responsibilities of Executive Order 13609 and has determined that this action will have no effect on international regulatory cooperation.

A copy of the NPRM, all comments received, this final rule, and all background material may be viewed online at https://www.regulations.gov using the docket number listed above. A copy of this final rule will be placed in the docket. Electronic retrieval help and guidelines are available on the website. It is available 24 hours each day, 365 days each year. An electronic copy of this document may also be downloaded from the Office of the Federal Register's website at https://www.federalregister.gov and the Government Publishing Office's website at https://www.govinfo.gov. A copy may also be found on the FAA's Regulations and Policies website at https://www.faa.gov/regulations_policies.

Copies may also be obtained by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW, Washington, DC 20591, or by calling (202) 267-9677. Commenters must identify the docket or notice number of this rulemaking.

All documents the FAA considered in developing this final rule, including economic analyses and technical reports, may be accessed in the electronic docket for this rulemaking.

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires the FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. A small entity with questions regarding this document may contact its local FAA official or the person listed under the FOR FURTHER INFORMATION CONTACT heading at the beginning of the preamble. To find out more about SBREFA on the internet, visit https://www.faa.gov/regulations_policies/rulemaking/sbre_act/.

In consideration of the foregoing, the Federal Aviation Administration amends chapter I of title 14, Code of Federal Regulations as follows:

Pursuant to Section 304(b) of the National Marine Sanctuaries Act (NMSA) (16 U.S.C. 1434(b)), NOAA published the designation and final regulations to implement the designation of LONMS on June 6, 2024 (89 FR 48272). As required by the NMSA, the designation and regulations would become effective following the close of a review period of 45 days of continuous session of Congress beginning on the date of publication. The regulations are effective on July 22, 2024.

As discussed in the final rule, NOAA is staying the effective date of § 922.223(a)(3), which prohibits grappling into or anchoring on shipwreck sites, until July 21, 2026. All other regulatory provisions became effective on July 22, 2024.

Throughout this document, wherever “we” or “our” is used, it means the EPA.

On April 1, 2024, the EPA proposed to approve revisions to the Oregon SIP to strengthen and streamline the stationary source permitting rules (89 FR 22363). The reasons for our proposed action are included in the proposal and will not be restated here. The public comment period closed on May 1, 2024. We received four comments from members of the public. The full text of the comments may be found in the docket for this action. We have summarized the comments and provided our responses in section II. of this preamble.

The first commenter conveyed overall support for the EPA's proposed action to approve the submitted revisions to the Oregon SIP. The EPA acknowledges the commenter's support for the EPA's approval of Oregon's SIP submission. However, the same commenter also expressed concern about two specific items in our proposed action. First, the commenter speculated about the potential impact to the permitting program and its transparency if the permit fee table (listing the specific dollar amounts charged to facility owners and operators for various types of permit actions) were removed from the SIP. The permit fee table in question is table 2 of Oregon Administrative Rules (OAR) 340-216-8020.

In response to the comment, the EPA reiterates what was stated in the proposed action  1 and further elaborates. In the March 27, 2023, submission, Oregon requested to remove the permit fee table from the SIP. The table codifies in State regulation the specific amounts to be charged by the State of Oregon to facility owners and operators for various types of permit actions. This table is revised periodically by the State to account for inflation and State-initiated revenue adjustments. However, there is no Clean Air Act requirement to include this itemized list in the SIP. States may decide to maintain such provisions as State-only regulations. Importantly, the requirement to pay pre-construction permit fees remains in the SIP, consistent with Clean Air Act section 110(a)(2)(L). 2 Therefore, the EPA's position remains that the SIP submission meets Clean Air Act requirements.

With respect to transparency, the table of permit fees remains codified as a matter of State law in the OAR and is readily available to the public and regulated entities on the Oregon Secretary of State website. 3 The Oregon Department of Environmental Quality continues to implement the permitting program and charge the associated fees listed in the permit fee table, as required. Therefore, we find that there is no anticipated impact to transparency.

Second, the same commenter expressed concern about removing text from the SIP-approved Oregon rules that historically tightened opacity limits related to visible emissions. While the commenter did not cite to the specific regulation change, we infer that the commenter was referring to the changes to OAR 340-208-0110.

In response to this comment, the EPA believes the commenter has misunderstood Oregon's rule revisions and the basis of the EPA's proposed action. As part of the March 27, 2023 SIP submission, Oregon submitted revisions to OAR 340-208-0110. The revisions removed obsolete text that, in the past, phased in tighter, 20 percent opacity limits starting on January 1, 2020. These tighter, 20 percent opacity limits have been fully phased in and are now widely applicable. Therefore, the text that allowed greater than 20 percent opacity prior to January 1, 2020, is obsolete. Removing this obsolete text from the SIP makes the rules clearer and easier to implement and has no substantive impact on the opacity standards in Oregon's SIP. Therefore, approval of this revision is appropriate.

The second commenter stated that they do not feel Oregon does enough to protect the public from air pollution and that the efforts the State does make are not equitable or fair. As an example, the commenter referenced the motor vehicle inspection and maintenance program that requires emissions testing in Portland and other metropolitan areas, but does not require such testing statewide.

The EPA acknowledges the comment, however, the commenter does not indicate with specificity why approval of Oregon's revisions to its SIP-approved permitting rules is inconsistent with the Clean Air Act or otherwise inappropriate.

In addition, the EPA does not consider comments on the SIP-approved Oregon motor vehicle inspection and maintenance program to be within the scope of this action. Revisions to the inspection and maintenance program requirements of Division 256 in the OAR were most recently approved by the EPA on July 12, 2022 and we are not in this action revisiting our prior decision (87 FR 41256). Likewise, comments on potential future changes to the SIP-approved motor vehicle inspection and maintenance program that have not been submitted to the EPA for SIP approval are outside the scope of this action.

The third commenter expressed concern about air emissions from cannabis farms and urged that Federal charges be reestablished. The commenter pointed to studies of the potential for volatile organic compound emissions from cannabis farms to contribute to ozone formation. The EPA acknowledges the comment, however, the comment is outside the scope of this action and does not indicate that the EPA's approval of the SIP submission is inconsistent with the CAA. Federal oversight of cannabis farms is unrelated to this action. This action addresses changes to the Oregon regulations governing stationary source permitting in the State, including changes to eliminate generic plant site emission limits, update construction notification requirements, clarify the use of modeling and monitoring for compliance assurance, and streamline the permit application process.

The fourth commenter appears to support the EPA's proposed action. The EPA acknowledges the commenter's support of the EPA's approval of Oregon's SIP submission.

For the reasons stated in our proposed action (89 FR 22363, April 1, 2024) and in section II. of this preamble, the EPA is finalizing its action as proposed.

The EPA is approving revisions to the Oregon SIP submitted on March 27, 2023. 4 The following paragraphs detail our incorporations by reference.

The EPA is incorporating specific OAR sections by reference into the Code of Federal Regulations (CFR). Upon the effective date of this action, the regulatory portion of the Oregon SIP at 40 CFR 52.1970(c) will include the following provisions, State effective March 1, 2023:

• OAR 340-200-0020 General Air Quality Definitions (defining terms used in the Oregon air quality regulations);

• OAR 340-200-0025 Abbreviations and Acronyms (defining abbreviations and acronyms used in the Oregon air quality regulations);

• OAR 340-200-0035 Reference Materials (specifying the title and version of each reference material used in the Oregon air quality regulations);

• OAR 340-204-0300 Designation of Sustainment Areas (identifying the areas in Oregon designated as sustaining the relevant air quality standard);

• OAR 340-204-0310 Designation of Reattainment Areas (identifying the areas in Oregon designated as reattaining the relevant air quality standard);

• OAR 340-206-0010 Introduction (establishing significant harm levels for pollutants in areas based on priority level);

• OAR 340-208-0110 Visible Air Contaminant Limitations (establishing limits and test methods for visible emissions);

• OAR 340-209-0080 Issuance or Denial of a Permit (specifying procedures for issuing and denying permits, including how to request a hearing to contest a permit decision);

• OAR 340-210-0100 Registration in General (identifying categories of sources that are required to register with the Oregon DEQ);

• OAR 340-210-0205 Notice of Construction and Approval of Plans: Applicability and Requirements, except paragraph (3) (listing source types and activities that require notice to the Oregon DEQ prior to construction);

• OAR 340-210-0225 Notice of Construction and Approval of Plans: Types of Construction/Modification Changes (establishing the activities that qualify for each type of notice of construction);

• OAR 340-210-0230 Notice of Construction and Approval of Plans: Notice to Construct Application (requiring the specific information to be submitted in an application);

• OAR 340-210-0240 Notice of Construction and Approval of Plans: Construction Approval (specifying what level of approval from Oregon DEQ is needed before a source may begin construction);

• OAR 340-210-0250 Notice of Construction and Approval of Plans: Approval to Operate (specifying what is required of a source to obtain approval to operate);

• OAR 340-214-0110 Reporting: Request for Information (requiring sources to respond to Oregon DEQ requests for information);

• OAR 340-214-0114 Reporting: Records; Maintaining and Reporting (detailing when and how to record and report data);

• OAR 340-214-0130 Reporting: Information Exempt from Disclosure (establishing that trade secrets and other eligible data may be exempt from disclosure);

• OAR 340-216-0020 Applicability and Jurisdiction (identifying source categories subject to Division 216 regarding air contaminant discharge permits);

• OAR 340-216-0025 Types and Permits (identifying the types of air contaminant discharge permits);

• OAR 340-216-0040 Application Requirements (spelling out the information required to be included in permit applications);

• OAR 340-216-0054 Short Term Activity ACDPs (listing the pilot and other time-limited activities that may be eligible for a short term activity ACDP);

• OAR 340-216-0056 Basic ACDPs (identifying the contents of a basic ACDP);

• OAR 340-216-0060 General Air Contaminant Discharge Permits (identifying the contents of a general ACDP);

• OAR 340-216-0064 Simple ACDPs (identifying the contents of a simple ACDP);

• OAR 340-216-0066 Standard ACDPs (identifying the contents of a standard ACDP);

• OAR 340-216-0068 Simple and Standard ACDP Attachments (allowing Oregon DEQ to add requirements to existing simple and standard ACDP permits);

• OAR 340-216-0082 Expiration, Termination, Reinstatement or Revocation of an ACDP (regulating when and how ACDPs expire, are terminated, reinstated or revoked);

• OAR 340-216-0084 Department Initiated Modification (establishing a means by which Oregon DEQ may modify an ACDP when needed);

• OAR 340-216-8010 Table 1—Activities and Sources (listing which source categories and associated activities must obtain an ACDP);

• OAR 340-216-8020 Table 2—Air Contaminant Discharge Permits, except paragraph (2) and table 2 (requiring sources to pay ACDP fees to the Oregon DEQ);

• OAR 340-222-0020 Applicability and Jurisdiction (requiring that plant site emission limits are included in most ACDPs and title V operating permits);

• OAR 340-222-0035 General Requirements for Establishing All PSELs (describing how plant site emission limits are established and how they are revised);

• OAR 340-222-0041 Annual PSELs (prescribing how annual plant site emission limits are established on a source-specific basis);

• OAR 340-222-0042 Short Term PSEL (establishing short term limits for sources located in areas with an established short term significant emission rate);

• OAR 340-222-0046 Netting Basis (establishing netting basis requirements);

• OAR 340-224-0030 New Source Review Procedural Requirements (establishing application and processing procedures for new source review permits);

• OAR 340-224-0520 Net Air Quality Benefit Emission Offsets: Requirements for Demonstrating Net Air Quality Benefit for Ozone Areas (requiring certain sources to offset emissions in areas with ozone problems);

• OAR 340-224-0530 Net Air Quality Benefit Emission Offsets: Requirements for Demonstrating Net Air Quality Benefit for Non-Ozone Areas (requiring sources to offset emissions in areas with particulate matter problems);

• OAR 340-225-0030 Procedural Requirements (prescribing the procedures for air quality analysis);

• OAR 340-225-0050 Requirements for Analysis in PSD Class II and Class III Areas (establishing the modeling requirements for sources in PSD class II and III areas);

• OAR 340-225-0070 Requirements for Demonstrating Compliance with Air Quality Related Values Protection (describing how to comply with limits established for national parks, wilderness, and other areas);

• OAR 340-226-0100 Highest and Best Practicable Treatment and Control: Policy and Application (requiring appropriate conditions in permits to control and treat emissions to the highest extent);

• OAR 340-226-0130 Highest and Best Practicable Treatment and Control: Typically Achievable Control Technology (TACT) (laying out when and how the Oregon DEQ will make typically achievable control technology determinations);

• OAR 340-226-0140 Highest and Best Practicable Treatment and Control: Additional Control Requirements for Stationary Sources of Air Contaminants (providing that the Oregon DEQ will establish additional control requirements to protect the NAAQS, visibility, and other public health and environmental goals);

• OAR 340-226-0210 Grain Loading Standards: Particulate Emission Limitations for Sources Other Than Fuel Burning Equipment, Refuse Burning Equipment and Fugitive Emissions (establishing particulate emission standards for non-fuel burning equipment);

• OAR 340-228-0210 General Emission Standards for Fuel Burning Equipment: Grain Loading Standards (setting grain loading standards for fuel-burning equipment);

• OAR 340-232-0030 Definitions (defining terms used in the rules establishing emission standards for VOC point sources);

• OAR 340-232-0040 General Non-Categorical Requirements (spelling out general case-by-case RACT requirements for VOC point sources);

• OAR 340-232-0090 Bulk Gasoline Terminals Including Truck and Trailer Loading (VOC emission limits for bulk gasoline terminals);

• OAR 340-232-0160 Surface Coating in Manufacturing (VOC emission limits for surface coating operations);

• OAR 340-232-0170 Aerospace Component Coating Operations (VOC emission limits for component coating in the aerospace industry);

• OAR 340-234-0010 Definitions except (8) and (10) (defining terms used in the rules establishing emission standards for the wood products industry);

• OAR 340-234-0210 Kraft Pulp Mills: Emission Limitations, except references to total reduced sulfur (setting emission limits for kraft pulp mills);

• OAR 340-236-8010 Hot Mix Asphalt Plants: table—Process Weight table (requiring hot mix asphalt plants to comply with specific process weight discharge rates);

The EPA is removing from incorporation by reference the following provisions:

• OAR 340-210-0215 Notice of Construction and Approval of Plans: Requirement, State effective April 16, 2015 (requirements to notify the Oregon DEQ prior to constructing or modifying a subject source);

• OAR 340-222-0040 Generic Annual PSEL, State effective April 16, 2015 (establishing generic plant site emission limits for subject sources that emit less than the significant emission rate);

• OAR 340-021-200 Purpose, State effective May 1, 1995 (describing the purpose of contingency control requirements for existing industrial sources in coarse particulate matter nonattainment areas);

• OAR 340-021-205 Relation to Other Rules, State effective March 10, 1993 (describing the relation of contingency control requirements to other regulations);

• OAR 340-021-210 Applicability, State effective March 10, 1993 (stating that contingency control requirements shall apply if the EPA determines an area has failed to attain the PM 10 standard by the applicable attainment date);

• OAR 340-021-215 Definitions, State effective March 10, 1993 (establishing definitions used in the contingency control requirements);

• OAR 340-021-220 Compliance Schedule for Existing Sources, State effective March 10, 1993 (setting the compliance schedule for sources to install emissions control systems as a contingency control requirement);

• OAR 340-021-225 Wood-Waste Boilers, State effective March 10, 1993 (limiting emissions from wood-waste boilers to a specific rate as a contingency control requirement);

• OAR 340-021-230 Wood Particle Dryers at Particleboard Plants, State effective March 10, 1993 (limiting emissions from wood particle dryers to a specific rate as a contingency control requirement);

• OAR 340-021-235 Hardboard Manufacturing Plants, State effective March 10, 1993 (limiting emissions from hardboard manufacturing plants to a specific rate as a contingency control requirement);

• OAR 340-021-240 Air Conveying Systems, State effective March 10, 1993 (limiting emissions from air conveying systems to a specific rate as a contingency control requirement); and

• OAR 340-021-245 Fugitive Emissions, State effective March 10, 1993 (requiring wood products manufacturing plants to limit fugitive emissions as a contingency control requirement).

In this document, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, we are finalizing the incorporation by reference of the Oregon regulatory provisions described in section III. of this preamble and set forth in the amendments to 40 CFR part 52 in this document. The EPA has made, and will continue to make, these materials generally available through https://www.regulations.gov and at the EPA Region 10 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by the EPA for inclusion in the SIP, have been incorporated by reference by the EPA into that plan, are fully federally enforceable under sections 110 and 113 of the Clean Air Act as of the effective date of the final rule of the EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 5

Also in this document, the EPA is removing regulatory text from incorporated by reference, as described in section III. of this preamble.

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

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

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

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

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

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

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

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

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

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

The air agency did not evaluate environmental justice considerations as part of its SIP submission; the Clean Air Act and applicable implementing regulations neither prohibit nor require such an evaluation. The EPA did not perform an EJ analysis and did not consider EJ in this action. Due to the nature of this action, it is expected to have a neutral to positive impact on the air quality of the affected area. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of Executive Order 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 23, 2024. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

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

EPA is making a correction for an inadvertent error in the regulatory “Words of Issuance” for the final rule by adding the missing sentence “For the reasons stated in the preamble, EPA amends part 52 of chapter I, title 40 of the Code of Federal Regulations as follows:”, to read as follows.

EPA has determined that there is good cause for making this rule final without prior proposal and opportunity for comment because we are adding language that was accidentally omitted. Thus, notice and public procedure are unnecessary. We find that this constitutes good cause under section 553(b)(B) of the Administrative Procedure Act, 5 U.S.C. 553(b)(B).

In FR doc. 2024-14620, beginning on page 55888 in the Federal Register of Monday, July 8, 2024, the following correction is made:

On page 55890, the second column, immediately before “PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS” add the words of issuance to read as follows:

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

On February 22, 2024, EPA published a notice of proposed rulemaking (NPRM) for the Commonwealth of Virginia (89 FR 13302, February 22, 2024). In the NPRM, EPA proposed approval of Virginia's amendment to an existing regulation in the SIP by adding a sulfur dioxide section for the newly designated SO 2 nonattainment area in a portion of Giles County. This revision is needed for the Commonwealth to implement the 2010 primary SO 2 national ambient air quality standard (NAAQS). Virginia submitted the formal SIP revision on August 9, 2023.

The Virginia Department of Environmental Quality's (VADEQ's) August 9, 2023 SIP submittal proposed to revise Virginia's SIP to include amendments to an existing regulation in the SIP which add a sulfur dioxide section for the newly designated SO 2 nonattainment area in a portion of Giles County. The amendments revise a provision in the Virginia Administrative Code (VAC), specifically 9VAC5-20-204 “Nonattainment areas” Subsection A, with a state effective date of February 15, 2023, which geographically defines the nonattainment areas by locality for the criteria pollutants indicated. The amendments are necessary for implementing the 2010 primary SO 2 NAAQS. The added subdivision at 9VAC5-20-204 A 5, refers to the area as “Giles County Sulfur Dioxide Nonattainment Area (part),” and defines it as that part of Giles County bounded by the lines connecting the coordinate points as designated in 40 Code of Federal Regulations (CFR) 81.347. There are also two minor changes—(1) a non-substantive wording change to the introductory language of 9VAC5-20-204 A which replaced the word “below” with “in this subsection” so that the phrase “Nonattainment areas are geographically defined below” now reads as “Nonattainment areas are geographically defined in this subsection” and (2) shifting “All other pollutants” from 9VAC5-20-204 A 5 to 9VAC5-20-204 A 6.

Other specific requirements of Virginia's August 9, 2023 submittal and the rationale for EPA's proposed action are explained in the NPRM, and will not be restated here. No public comments were received on the NPRM.

EPA is approving the Virginia SIP revision adding the “Giles County Sulfur Dioxide Nonattainment Area (part)” to Virginia's list of nonattainment areas, which the VADEQ submitted to EPA on August 9, 2023.

In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information that: (1) are generated or developed before the commencement of a voluntary environmental assessment; (2) are prepared independently of the assessment process; (3) demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) are required by law.

On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege Law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts. . . .” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.”

Virginia's Immunity Law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any Federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.”

Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the Federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the VADEQ regulation amending 9VAC5-20-204 to add a new sulfur dioxide nonattainment area and two other minor changes as discussed in section II of this preamble, “Summary of SIP Revision and EPA Analysis.” The EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region III Office (please contact the person identified in the For Further Information Contact section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 1

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

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

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

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

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

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

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

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

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

In addition, this rule approving Virginia's listing of a newly designated SO 2 nonattainment area into the SIP does not have tribal implications as specified by Executive Order 13175 (65 FR 67429, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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

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

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally 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. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 23, 2024. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action, revising Virginia's list of nonattainment areas to add a portion of Giles County as a nonattainment area for the 2010 primary sulfur dioxide NAAQS, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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

Abbreviations and acronyms: The following acronyms and abbreviations are used throughout this document.

This action itself does not impose any requirements on individual people or entities. Instead, it notifies interested parties of EPA's review of existing national primary drinking water regulations (NPDWRs) and its conclusions about which of these NPDWRs may warrant regulatory revisions at this time. The Six-Year Review is not a final regulatory decision to revise or not revise an NPDWR, but rather a planning process that involves more detailed analyses of factors relevant to deciding whether a rulemaking to revise an NPDWR should be initiated.

1. Docket. EPA has established a docket for this action under Docket ID No. EPA-HQ-OW-2023-0572. Publicly available docket materials are available electronically on www.regulations.gov or in hard copy at the EPA Docket Center, WJC West Building, Room 3334, 1301 Constitution Ave. NW, Washington, DC. The Docket Center's hours of operations are 8:30 a.m. to 4:30 p.m., Monday through Friday (except Federal Holidays). For further information on the EPA Docket Center services and the current status see : https://www.epa.gov/dockets.

2. Electronic Access. You may access this Federal Register document electronically from https://www.federalregister.gov.

Under the Safe Drinking Water Act (SDWA), as amended in 1996, EPA must periodically review existing NPDWRs and, if appropriate, revise them. Section 1412(b)(9) of the SDWA states: “The Administrator shall, not less often than every six years, review and revise, as appropriate, each national primary drinking water regulation promulgated under this title. Any revision of a national primary drinking water regulation shall be promulgated in accordance with this section, except that each revision shall maintain, or provide for greater, protection of the health of persons.”

Pursuant to the 1996 SDWA Amendments, EPA completed and published the results of its first Six-Year Review (Six-Year Review 1) on July 18, 2003 (68 FR 42908, USEPA, 2003), the second Six-Year Review (Six-Year Review 2) on March 29, 2010 (75 FR 15500, USEPA, 2010a) and the third Six-Year Review (Six-Year Review 3) on January 11, 2017 (82 FR 3518, USEPA, 2017a).

During the Six-Year Review 1, EPA identified the Total Coliform Rule (TCR) as a candidate for revision. 1 In Six-Year Review 2, EPA identified four NPDWRs corresponding to acrylamide, epichlorohydrin, tetrachloroethylene (PCE), and trichloroethylene (TCE) as candidates for revision. In Six-Year Review 3, eight NPDWRs were listed as candidates for revision, including: chlorite, Cryptosporidium (under SWTRs), Giardia lamblia, haloacetic acids (HAA5), heterotrophic bacteria, Legionella, total trihalomethanes (TTHM), and viruses (under SWTRs). EPA also announced that the NPDWRs for acrylamide and epichlorohydrin were no longer candidates for revision due to low opportunity for further reduction of public health risk through regulatory revision (82 FR 3525, USEPA, 2017a).

In this document, EPA is announcing the results of the fourth Six-Year Review (Six-Year Review 4). EPA's announcement of whether to identify an NPDWR as a candidate for revision (pursuant to SDWA section 1412(b)(9)) is not a regulatory decision. Instead, announcing that an NPDWR is a candidate for revision formally initiates a regulatory process that involves more detailed analyses of health effects, analytical constraints, treatment feasibility, occurrence, benefits, costs, and other policy considerations relevant to informing an NPDWR revision effort. The Six-Year Review results do not obligate the agency to revise an NPDWR if EPA determines during the regulatory process that revisions are no longer appropriate and discontinues further efforts to revise the NPDWR. Similarly, when EPA announces that a particular NPDWR has not been identified as a candidate for revision it means that the agency has concluded that it is not appropriate for revision at this time based on available information.

The criteria that EPA has applied to help identify when an NPDWR might be considered as a “candidate for revision” are, at a minimum, that the regulatory revision presents a meaningful opportunity to improve the level of public health protection, and/or achieve cost savings while maintaining or improving the level of public health protection.

Table 1 of this document lists all 94 NPDWRs established to date. The table also reports the maximum contaminant level goal (MCLG) and, where applicable, the maximum contaminant level (MCL). The MCLG is “set at the level at which no known or anticipated adverse effects on the health of persons occur and which allows an adequate margin of safety” (SDWA section 1412(b)(4)). The MCL for each applicable NPDWR, is the maximum permissible level of a contaminant in water delivered to any user of a public water system (PWS) and generally “is as close to the maximum contaminant level goal as is feasible” (SDWA section 1412(b)(4)(B)). If it is not “economically or technically feasible to ascertain the level of the contaminant,” EPA can require the use of a treatment technique (TT) in lieu of establishing an MCL. The treatment technique(s) must prevent known or anticipated adverse health effects “to the extent feasible” (SDWA section 1412(b)(7)(A)). 2 In the case of disinfectants ( e.g., chlorine, chloramines, chlorine dioxide), the values reported in the table are not MCLGs and MCLs, but maximum residual disinfectant level goals (MRDLGs) and maximum residual disinfectant levels (MRDLs).

I. General Information A. Does this action apply to me?

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2023-0221 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before September 23, 2024.

The EPA's Office of Administrative Law Judges (OALJ), in which the Hearing Clerk is housed, urges parties to file and serve documents by electronic means only, notwithstanding any other particular requirements set forth in other procedural rules governing those proceedings. See “Revised Order Urging Electronic Filing and Service,” dated June 22, 2023, which can be found at https://www.epa.gov/system/files/documents/2023-06/2023-06-22%20-%20revised%20order%20urging%20electronic%20filing%20and%20service.pdf. Although the EPA's regulations require submission via U.S. Mail or hand delivery, the EPA intends to treat submissions filed via electronic means as properly filed submissions; therefore, the EPA believes the preference for submission via electronic means will not be prejudicial. When submitting documents to the OALJ electronically, a person should utilize the OALJ e-filing system at https://yosemite.epa.gov/OA/EAB/EAB-ALJ_upload.nsf.

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2023-0221, by one of the following methods:

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

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

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

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

In the Federal Register of July 5, 2023 (88 FR 42936) (FRL-10579-05-OCSPP), EPA issued a notice pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide tolerance exemption petition (PP 3F9053) by Agrotecnologías Naturales S.L., Ctra. T-214, s/n Km 4,125; 43762 Riera de Gaià La; Tarragona; Spain (c/o SciReg, Inc., 12733 Director's Loop, Woodbridge, VA 22192). The petition requested that 40 CFR part 180; be amended by establishing an exemption from the requirement of a tolerance for residues of Trichoderma atroviride AT10 in or on all food commodities. That notice referenced a summary of the petition prepared by the petitioner, Agrotecnologías Naturales S.L. and available in the docket via https://www.regulations.gov. EPA received a comment on the notice of filing. EPA's response to this comment is discussed in Unit III.C. In addition, EPA modified the name of the active ingredient proposed in the notice of filing to conform with microbial active ingredient naming conventions from Trichoderma atroviride AT10 to Trichoderma atroviride strain AT10.

Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement of a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings but does not include occupational exposure. Pursuant to FFDCA section 408(c)(2)(B), in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in FFDCA section 408(b)(2)(C), which require EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance or tolerance exemption and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .” Additionally, FFDCA section 408(b)(2)(D) requires that EPA consider “available information concerning the cumulative effects of [a particular pesticide's] . . . residues and other substances that have a common mechanism of toxicity.”

EPA evaluated the available toxicological and exposure data on Trichoderma atroviride strain AT10 and considered their validity, completeness, and reliability, as well as the relationship of this information to human risk. A full explanation of the data upon which EPA relied and its risk assessment based on those data can be found within the document entitled “Human Health Risk Assessment of Trichoderma atroviride AT10, a New Active Ingredient, in the End Use Product (EP) TRICOTEN WP, Proposed for Registration and an Associated Petition Requesting a Tolerance Exemption” ( Trichoderma atroviride strain AT10 EP Human Health Risk Assessment). This document, as well as other relevant information, is available in the docket for this action as described under ADDRESSES .

The toxicological profile of Trichoderma atroviride strain AT10 was previously described in the “Human Health Risk Assessment of Trichoderma atroviride AT10, a New Active Ingredient, in the End Use Product (EP) TRICOTEN WP, Proposed for Registration and an Associated Petition Requesting a Tolerance Exemption”. Based upon its evaluation, EPA concludes that, with regard to humans, Trichoderma atroviride strain AT10 is not anticipated to be toxic, pathogenic, irritating, or infective. Significant dietary and non-occupational exposure to residues of Trichoderma atroviride strain AT10 are not expected as the products will be applied in agricultural settings, other non-occupational exposures through drift or other measures are considered very unlikely. Even if dietary and non-occupational exposures to residues of Trichoderma atroviride strain AT10 were to occur, there is not concern due to the lack of adverse effects from toxicity and pathogenicity studies. Because there are no thresholds of concern with the toxicity, pathogenicity, or infectivity of Trichoderma atroviride strain AT10, EPA determined that no additional margin of safety is necessary to protect infants and children as part of the qualitative assessment conducted.

Based upon its evaluation in the Trichoderma atroviride strain AT10, human health risk assessment, which concludes that there are no risks of concern from aggregate exposure to Trichoderma atroviride strain AT10, EPA concludes that there is a reasonable certainty that no harm will result to the U.S. population, including infants and children, from aggregate exposure to residues of Trichoderma atroviride strain AT10.

An analytical method is not required for Trichoderma atroviride strain AT10 because EPA is establishing an exemption from the requirement of a tolerance without any numerical limitation.

One comment was received in response to the notice of filing. EPA reviewed the comment and determined that it was irrelevant to the tolerance exemption in this action.

Therefore, an exemption from the requirement of a tolerance is established for residues of Trichoderma atroviride strain AT10 in or on all food commodities when used in accordance with label directions and good agricultural practices.

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

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

This action directly regulates growers, food processors, food handlers, and food retailers, not States or Tribes. As a result, this action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, EPA has determined that this action will not have a substantial direct effect on States or Tribal Governments, on the relationship between the National Government and the States or Tribal Governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian Tribes. Thus, EPA has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under title II of the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ).

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

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

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

The Ocean Shipping Reform Act of 2022 (OSRA 2022), Public Law 117-146, was enacted on June 16, 2022. OSRA 2022 amended various statutory provisions contained in part A of subtitle IV of title 46, United States Code. OSRA 2022 made clear that the categorical refusal by an ocean common carrier, alone or in conjunction with another person, directly or indirectly, to accommodate U.S. exports, without demonstrating that the refusal is reasonable, is a violation of the Shipping Act. By definition, not all refusals will necessarily be a violation. Whether a refusal to deal or a refusal to negotiate falls within the scope of section 41104(a)(10), or a refusal of cargo space accommodations falls within the scope of section 41104(a)(3), depends upon the particular circumstances of a given case.

Section 7(d) of OSRA 2022 requires the Commission, in consultation with the United States Coast Guard, to initiate and complete a rulemaking to define the phrase “unreasonable refusal to deal or negotiate with respect to vessel space accommodations” provided by an ocean common carrier to work in conjunction with 46 U.S.C. 41104(a)(10). In response to this requirement, on September 21, 2022, the FMC issued a notice of proposed rulemaking (NPRM) that proposed adding a new part 542 under title 46 of the Code of Federal Regulations (CFR), which would work in conjunction with 46 U.S.C. 41104(a)(10). 1 The proposal considered the common carriage roots of 46 U.S.C. 41104(a)(10), as well as the overall competition basis of the Commission's authority. 2

On June 14, 2023, after reviewing the comments received in response to the NPRM, the Commission issued a revised and expanded supplemental notice of proposed rulemaking (SNPRM). In addition to addressing OSRA 2022's amendment to 46 U.S.C. 41104(a)(10), the SNPRM also addressed OSRA 2022's amendment to 46 U.S.C. 41104(a)(3), which prohibits a common carrier from unreasonably refusing cargo space accommodations when available. The restrictions that 46 U.S.C. 41104 (a)(3) and (a)(10) impose on ocean common carriers are distinct but closely related. Both provisions address refusals by ocean common carriers to accommodate shippers' attempts to secure overseas transportation for their cargo. The distinction between the conduct covered by these two provisions is timing, more specifically whether the refusal occurred while the parties were still negotiating and attempting to reach a deal on service terms and conditions (negotiation stage), or after a deal was reached (execution stage). If the refusal occurred at the execution stage, after the parties reached a deal or mutually agreed on service terms and conditions, then 46 U.S.C. 41104(a)(3) applies. If the refusal occurred at the negotiation stage, before the parties reached a deal or mutually agreed on service terms and conditions, then 46 U.S.C. 41104(a)(10) applies. Interpreting these related provisions in a single rulemaking allows the Commission to delineate the types of refusal conduct covered by 46 U.S.C. 41104 (a)(3) and (a)(10) and highlight the differences between them. As discussed in the SNPRM, restricting the rulemaking to refusals to deal or negotiate under 46 U.S.C. 41104(a)(10) would not address the reliability issues that commenters on the NPRM identified as a critical and a driving factor impeding their ability to ship cargo overseas. Shippers impacted by unlawful refusals to accommodate their requests for vessel space accommodations have been able to bring a cause of action against ocean common carriers since the OSRA 2022 amendments took effect immediately in June 2022. They may find it more difficult, however, to plead and prevail on those claims without implementing regulations from the Commission defining the elements and statutory terms. Parties may also find it more difficult to identify and litigate claims for unreasonable refusals under 46 U.S.C. 41104(a)(3) without a clearer indication from the Commission of what conduct is covered by that provision as distinguished from 46 U.S.C. 41104(a)(10). Clearly delineating these distinctions as part of the current rulemaking lessens the time and resources that shippers, carriers, and the Commission will otherwise need to devote to defining these concepts in individual cases. Defining the elements and terms used in 46 U.S.C. 41104(a)(3) as part of this rulemaking is also important because, in practice, it may be difficult to discern whether a carrier's refusal was at the negotiation or execution stage. Additional guidance from the Commission now may help avoid needless disputes over that issue.

The Commission acknowledges that it has not previously recognized a temporal distinction between (a)(3) and (a)(10). However, as discussed in the SNPRM, reading the conduct governed by 46 U.S.C. 41104(a)(10) to include the same conduct prohibited by 46 U.S.C. 41104(a)(3), as amended by OSRA 2022, would violate the canon of statutory construction against construing statutes in a manner that renders language superfluous or meaningless. Previously, FMC distinguished (a)(3) from other prohibitions in 41104 based on the shipper's involvement in protected activity. 3 OSRA 2022, however, removed the protected entity and the protected activity language from (a)(3). 4 Therefore, there must be some other means of distinguishing the two provisions.

Consistent with section 7(d) of OSRA 2022, the Commission has consulted with the Coast Guard regarding this rulemaking. The Coast Guard offered no objections to the Commission's approach.

There are two types of common carriers—vessel-operating common carriers (VOCCs) and non-vessel-operating common carriers (NVOCCs). 5 Section 41104 applies generally to both VOCCs and NVOCCs; this rule, however, only applies to VOCCs. The specific prohibition in 46 U.S.C. 41104(a)(10) that is the subject of this rule applies only to VOCCs because “ocean common carrier” is defined as a vessel-operating common carrier in the Shipping Act. 6 Although 46 U.S.C. 41104(a)(3) and 46 U.S.C. 41104(a)(10) apply to both VOCCs and NVOCCs, this rule only applies to VOCCs to mirror the scope of the specific prohibition in 41104(a)(10) added by OSRA 2022. 7 The limitation in scope of this rule to VOCCs does not in any way limit the application of 46 U.S.C. 41104(a)(3) or 46 U.S.C. 41104(a)(10). NVOCCs remain legally liable under 46 U.S.C. 41104(a)(3) and 46 U.S.C. 41104(a)(10) for violations of the Shipping Act.

Similarly, 41104 applies generally to roll-on/roll-off cargo, bulk cargo, and containerized cargo. This rule, however, only applies to containerized cargo because the sorts of issues that arose around container availability during the pandemic do not appear to have been present, or at least not present to the same extent, for roll-on/roll-off cargo or bulk cargo. While this rule is limited to containerized cargo, it does not preclude refusal to deal cases arising in the context of roll-on/roll-off cargo or bulk cargo—the framework in this rule could be applied to such cases. 8

As noted in the SNPRM, the Commission will address, at a different time, the statutory requirement in section 7(c) of OSRA 2022 to complete a rulemaking defining “unfair or unjustly discriminatory methods” in 46 U.S.C. 41104(a)(3).

The common carrier prohibitions in 46 U.S.C. 41104 do not distinguish between U.S. exports and imports. This rule applies to both.

One basis, but not the only one, for some of the OSRA 2022 provisions were the challenges expressed by U.S. exporters trying to obtain vessel space to ship their products. 9 10

As discussed in the NPRM, there is a long-running U.S. trade deficit in goods (approximately $1 trillion in 2023) and an imbalance of imports and exports moving through U.S. ports in international trade. 11

VOCCs, particularly those on the major east-west trade lanes between the United States and Asia and the United States and Europe, make operational decisions regarding the import and export goods they carry based on both economic and engineering considerations. Export loads are, on average, heavier than import loads. This means that ships that come into U.S. ports largely laden with goods cannot safely load the same number of laden twenty-foot equivalent units (TEUs) when leaving the United States for foreign ports. A higher volume of laden exports will result in a lower vessel utilization rate on the outbound voyage from the United States, resulting in fewer containers returning to where the equipment is in highest demand. The economics of this trade imbalance result in very different revenue returns for import and export trades. U.S. imports feature higher value items on average and the rates that shippers pay to move these goods are historically higher than the rates paid to move U.S. exports. For example, the average rate of a 20-foot dry container moving from Shanghai to the U.S. West Coast was $1,740 in January 2019, $4,270 in January 2021, $8,130 in January 2022, $1,591 in January 2023 and $2,845 in January 2024. The corresponding rate for a 20-foot dry container moving from the U.S. West Coast to Shanghai was $730 in January 2019, $800 in January 2021, $1,220 in January 2022, $978 in January 2023, and $633 in January 2024. 12 Further, the inland destination of import containers is often not located near export customers, which requires equipment repositioning costs as well as the opportunity cost of unused equipment.

Prior to the pandemic, the ratio of import TEUs to export TEUs moving through U.S. ports across all trade lanes was over 50 percent; in April 2019 this ratio was 59 percent. 13 While containerized imports (measured in TEUs) increased steadily from May 2020 through April 2022, imports tapered off in the latter half of 2022 and containerized exports declined over the same period. There was an import-export TEU ratio of 45 percent in April 2023. Approximately 1.8 million TEUs of all U.S. imports moved through U.S. ports in April 2023, versus 1.98 million in April 2019. Total U.S. exports fell from 1.2 million TEUs in April 2019 to 803,673 in April 2023. 14

Trade on some specific lanes is even more imbalanced. Trade from Asia to U.S. ports was characterized by an import/export TEU ratio of 39 percent in 2019, 36 percent in 2020, 29 percent in 2021, 28 percent in 2022, and 33 percent in 2023. As of January 2024, that number sits at 28 percent. There is no homogeneity among carriers, even within trade lanes. On the Asia to United States trade lane, among the largest carriers, the ratio of exports to imports ranged from 27 percent to 52 percent in 2019, from 23 percent to 44 percent in 2021, and from 27 percent to 57 percent in 2023. Some carriers had very stable export to import ratios throughout the pandemic, though most saw a substantial drop in both the ratio of exports to imports and the absolute number of export containers moved, particularly between 2020 and 2021. This pattern continued into the first quarter of 2022.

While some export markets have been affected by trade shocks, such as China's ban on solid waste imports and other items, these trade shocks do not fully explain the drop in total exports carried; nor do safety concerns over ship loading. These changes can be best explained by carrier operational decisions based on equipment availability and differential revenues from import and export transportation. 15 Common carriers stated they have seen delays in the movement of export cargo due to a lack of mutual commitment between shippers and common carriers leading to cancellations of vessel space accommodation by either party, sometimes up to the day of sailing. This contributes to uncertainty for both the shippers and common carriers.

In addition to the challenges faced by exporters, there have also been reports of restricted access to equipment and vessel capacity for U.S. importers, particularly in the Trans-Pacific market. Access to import vessel space was impacted by congestion, equipment availability, and VOCC commercial decisions. 16

In response to the SNPRM, the Commission received 26 comments from a variety of interested parties. This included comments from freight forwarders, customs brokers, ocean transportation intermediaries (OTIs), chemical manufacturers, importers and exporters and distributors in a range of industries, vessel-operating common carriers (VOCCs), shipper trade associations, ocean carrier and marine terminal operator associations, ocean carrier agreements, shipping industry associations, agricultural exporter coalitions and one federal agency. All comments are available in the docket for this action (FMC-2023-0010) on Regulations.gov.

These comments are addressed in the discussion that follows.

Issue: One comment argued that the Commission's statement in the NPRM that ocean common carriers should offer service in both inbound and outbound trade is incorrect and inconsistent with Commission precedent. 17 The comment asserted that just because a common carrier holds itself out as a common carrier in U.S. imports does not mean that the carrier is obligated to act as a common carrier for U.S. exports.

FMC response: In the SNPRM, the Commission stated that “every ocean common carrier operating in the U.S. market is presumed by the Commission—barring the submission of further information to the contrary—to be able to transport both exports and imports.”  18 Whether or not an entity is an ocean common carrier is determined on a case-by-case basis. 19

Commerce is issuing this final rule to discontinue use of Form CD-492, Justification for Other Than Full and Open Competition. The purpose of the administrative rulemaking is to cease the requirement for acquisition teams to use a prescribed form to document justifications for other than full and open competition under the Federal Acquisition Regulation (FAR) in 48 CFR part 6. The CD-492 was originally developed to provide consistency across Commerce when documenting the approval or disapproval of justifications for other than full and open competition within a hardcopy contract file. Commerce has fully transitioned to electronic contract files and the static form is no longer considered the most efficient method of documenting the approval or disapproval of such a justification. Contracting Officers will be required to comply with the content requirements set forth in FAR 6.303-2 when documenting their determinations. Commerce has also determined that an editorial change is necessary to better align with internal Commerce processes, therefore, Commerce will also make an editorial change to the last sentence of section 1306.303-70 to correct a reference to Department legal review procedures by replacing the word “concurrence” with the word “review.”

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

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

Commerce determined that this rule qualifies for exemption from the Administrative Procedure Act's (APA) requirement for a public notice and comment period, and that it may therefore proceed directly to the final rule stage. Under 5 U.S.C. 553(b)(A), rulemakings that are rules of agency organization, procedure, or practice are exempt from providing the public with a notice and comment period. This rule only removes the requirement for acquisition teams to use Form CD-492. Therefore, this rule qualifies for the exemption and no public notice and comment period is required.

Additionally, Commerce finds good cause to waive the notice and public comment period for this rule because the effect of the rule does not place any burden on the public or require the public to undertake or cease any particular action. Oppositely, this rulemaking only removes the requirement for acquisition teams to use Form CD-492. Therefore, a public notice and comment period would be unnecessary and qualifies for waiver under the APA (see 5 U.S.C. 553(b)(B)).

Therefore, in accordance with 41 U.S.C. 414 and 48 CFR 1.301 through 1.304, the Department of Commerce amends 48 CFR parts 1306 and 1353 as follows:

On April 3, 2024, NMFS published a final rule approving changes to the Pacific halibut Area 2A Catch Sharing Plan (CSP) and implementing recreational (sport) management measures for the 2024 Area 2A recreational fisheries (89 FR 22966), as authorized by the Northern Pacific Halibut Act of 1982 (16 U.S.C. 773-773(k)). The Council's 2024 Catch Sharing Plan provides a recommended framework for NMFS' annual management measures and subarea allocations based on the 2024 Area 2A Pacific halibut catch limit, also known as the fishery constant exploitation yield (FCEY), of 1.47 million pounds (lb; 666.8 metric tons [mt]) set by the IPHC. The Area 2A FCEY and recreational fishery allocations were adopted by the IPHC and were published in the Federal Register on March 18, 2024 (89 FR 19275), after acceptance by the Secretary of State, with concurrence from the Secretary of Commerce, in accordance with 50 CFR 300.62. The Area 2A Pacific halibut management measures include recreational fishery season dates, bag limits, and subarea allocations.

Federal regulations at 50 CFR 300.63(c)(6), “Inseason Management for Recreational (Sport) Halibut Fisheries in Area 2A,” allow the NMFS Regional Administrator to modify annual regulations during the season. These inseason provisions allow the Regional Administrator to modify recreational (sport) fishing periods, bag limits, size limits, days per calendar week, and subarea allocations, if it is determined it is necessary to meet the allocation objectives and the action will not result in exceeding the catch limit.

NMFS has determined that, due to lower than expected landings in all Washington subareas, the Columbia River subarea, and the Oregon Central Coast subarea, inseason action to modify the 2024 Washington and Oregon recreational fishery seasons, i.e., days per calendar week, is warranted at this time to provide additional opportunity for fishery participants to achieve the Area 2A subarea allocations. As stated above, inseason modification of fishing season dates is authorized by Federal regulations at 50 CFR 300.63(c)(6) and the final rule (89 FR 22966, April 3, 3024). After consulting with the Washington Department of Fish and Wildlife (WDFW), the Oregon Department of Fish and Wildlife (ODFW), and other appropriate entities, NMFS determined that the following inseason action is necessary to meet the management objective of attaining the subarea allocations and is consistent with the inseason management provisions allowing for the modification of recreational fishing days per calendar week.

The final rule published on April 3, 2024 (89 FR 22966), approving the 2024 CSP and implementing recreational management measures for the 2024 Area 2A Pacific halibut fisheries, stated that, if sufficient Washington subarea allocation remains for at least another full day of fishing after June 30, NMFS may take inseason action to reopen the fishery in August, up to 7 days per week, through September. The re-opened area will close when there is not sufficient subarea allocation for another full day of fishing. Any inseason action, including closures, will be announced in accordance with Federal regulations at 50 CFR 300.63(c) and on the NMFS hotline at (206) 526-6667 or (800) 662-9825. Additionally, the 2024 CSP states that if an allocation is designated for the Oregon Central Coast subarea summer all-depth fishery, then it is to open the first Friday in August and continue until there is insufficient allocation for an additional day of fishing or October 31, whichever is earlier. The 2024 CSP also states that, if the entire remaining allocation for the Central Oregon Coast subarea is 60,000 lb or more after the first scheduled open period ( i.e., August 1-3), and if determined to be appropriate through joint consultation between IPHC, NMFS, PFMC, and ODFW, the summer all-depth fishery will re-open every week on Friday and Saturday (and Thursday if there is enough allocation) and/or may open up to 7 days a week beginning September 1.

Notice of these additional dates are announced in accordance with Federal regulations at 50 CFR 300.63(c) and also on the NMFS hotline at (206) 526-6667 or (800) 662-9825. Weekly catch monitoring reports for the recreational fisheries in Washington and Oregon are available on their respective state Fish and Wildlife agency websites. NMFS will continue to monitor recreational catch obtained via state sampling procedures until NMFS has determined there is not sufficient allocation for another full day of fishing in the subareas off Washington and Oregon, and an area is closed by NMFS, or until the season closes on September 30 in Washington and the Columbia River subarea or October 31 in Oregon, whichever is earlier.

Description of the action: This inseason action implements additional fishing dates for the Washington Puget Sound, North Coast, and South Coast subareas during the 2024 recreational fishery. The Puget Sound and North Coast subarea will open 7 days per week, August 16 through September 30, or until there is not sufficient subarea allocation for another full day of fishing and the area is closed. The South Coast subarea will open August 22 through September 3 and September 5, 8, 10, 12, 15, 17, 19, 22, 24, 26, 29, or until there is not sufficient subarea allocation for another full day of fishing and the area is closed.

Reason for the action: The purpose of this inseason action is to provide additional opportunity for anglers in the Washington Puget Sound, North Coast, and South Coast subareas to achieve their remaining subarea allocations. Due to lower than expected landings from reduced angler effort, low initial catch rates, poor weather and ocean conditions, and smaller than anticipated halibut being caught (likely as a result of relatively young year-classes supporting the fishery), enough subarea allocation remains to add the additional dates. Using daily catch estimates through June 30, inseason projections for August and September suggest that much of the Washington subarea allocations would go unharvested without additional fishing dates.

The Washington Puget Sound subarea recreational fishery opened on April 4, 2024. Through June 30, anglers in the Puget Sound subarea have harvested 54,497 lb (24.7 mt) of the 81,729 lb (37.1 mt) allocation (67 percent), leaving 27,232 lb (12.4 mt) remaining (33 percent of the subarea allocation). The Washington North and South Coast subareas opened on May 2, 2024. Through June 30, anglers in the North Coast subarea have harvested 101,852 lb (46.2 mt) of the 132,366 lb (60.0 mt) allocation (77 percent), leaving 30,514 lb (13.8 mt) remaining (23 percent of the subarea allocation). Anglers in the South Coast subarea have harvested 51,085 lb (23.1 mt) of the 67,074 lb (30.4 mt) allocation (76 percent), leaving 15,989 lb (7.3 mt) remaining (24 percent of the subarea allocation).

After consulting with WDFW, it was determined that in order for anglers to have the opportunity to achieve the Washington subarea allocations, with little risk of the subareas or coastwide allocation being exceeded, additional fishing dates are warranted. Therefore, through this action, NMFS is announcing fishing dates in August and September that were not previously implemented in the final rule on April 3, 2024 (89 FR 22966).

Notice of these additional dates are announced in accordance with Federal regulations at 50 CFR 300.63(c) and also on the NMFS hotline at (206) 526-6667 or (800) 662-9825.

Description of the action: This inseason action implements additional fishing dates for the Columbia River subarea during the 2024 recreational fishery. The Columbia River subarea will open from August 22 through September 3 and September 5, 8, 10, 12, 15, 17, 19, 22, 24, 26, 29, or until there is not sufficient subarea allocation for another full day of fishing and the area is closed.

Reason for the action: The purpose of this inseason action is to provide additional opportunity for anglers in the Columbia River subarea to achieve the subarea allocation. NMFS has determined, for the same reasons stated above for the Washington subareas, that the Columbia River subarea allocation will go unharvested without additional fishing dates. The recreational fishery in this subarea opened on May 2, 2024. As of June 30, anglers in the Columbia River subarea have harvested 13,605 lb (6.2 mt) of the 11,112 lb (8.2 mt) allocation (75.1 percent), leaving 4,508 lb (2.0 mt) remaining (25 percent of the subarea allocation).

After consulting with WDFW and ODFW, it was determined that in order for anglers to have the opportunity to achieve the Columbia River subarea allocation, with little risk of the subarea or coastwide allocation being exceeded, additional fishing dates are warranted. Therefore, through this action, NMFS is announcing fishing dates in August and September that were not previously implemented in the final rule on April 3, 2024 (89 FR 22966).

Notice of these additional dates are announced in accordance with Federal regulations at 50 CFR 300.63(c) and also on the NMFS hotline at (206) 526-6667 or (800) 662-9825.

Description of the action: This inseason action opens additional fishing days in the Oregon Central Coast subarea. Specifically, this action opens the Oregon Central Coast subarea's summer all-depth fishery from 3 days every other week to 7 days a week from August 1 through October 31, 2024, or until there is not sufficient subarea allocation for another full day of fishing and the area is closed.

Reason for the action: The purpose of this inseason action is to provide additional opportunity for anglers in the Oregon Central Coast subarea by spreading angler effort throughout the week and allowing them to take advantage of optimal weather windows to better achieve the subarea allocation. NMFS has determined that due to lower than expected landings through July 7, and the expectation that a substantial amount of the Oregon combined allocation will go unharvested without additional fishing days, additional fishing days are warranted. The spring all-depth fishery in this subarea opened May 1, 2024. Catch estimates through July 7 in the Oregon Central Coast subarea's spring all-depth fishery indicate 119,136 lb (22 mt) of the 167,681 lb (76 mt) spring all-depth fishery allocation (71.1 percent) has been harvested, leaving 48,545 lb (22.0 mt) remaining (29.0 percent of the spring all-depth). Catch estimates through July 7 indicate, the Oregon Central Coast subarea remaining allocation is estimated to be 147,024 lb (66.7 mt; 55.2 percent of the subarea allocation). Any spring all-depth fishery allocation that remains after July 31 will be combined with the initial summer all-depth fishery allocation of 66,540 lb (30.2 mt). Based on an average of 12,571 lb landed per week in the spring all-depth fishery (2022-present), ODFW projects 10,381 lb (4.7 mt) to be remaining by the end of July to be combined with the initial summer all-depth fishery for a combined all-depth allocation of 77,370 lb (35.1 mt). The projected combined all-depth allocation plus the unused nearshore allocation totals a projected allocation of 109,309 lb (49.6 mt) of Pacific halibut available for recreational anglers in the Oregon Central Coast subarea. Additionally, ODFW reported to NMFS that the average weight of individual halibut caught by anglers in the Central Oregon Coast subarea spring all-depth season in 2024 is 13.9 lb (0.0063 mt), as compared to 16.0 lb (0.0073 mt) in 2023, 15.2 lb (0.069 mt) in 2022 and 14.2 lb (0.0064 mt) in 2021. During pre-season planning, projections used to develop the Oregon Central Coast's season structure were based on the average weight for individual halibut caught by anglers being similar to that of what was observed in 2023, and in anticipation of larger fish from the 2012-year class recruiting to the fishery. However, results from sampling efforts, to date, indicate that there has been an approximately 13 percent reduction in average weight for individual halibut caught in 2024 compared to average weight caught in 2023, possibly due to a younger year class recruiting to the fishery. Further, it was reported by ODFW that the Oregon Central Coast experienced stronger spring winds in 2024 compared to 2023, which limited the number of days anglers were able to fish for Pacific halibut offshore. These two factors, low average weight of halibut and poor weather conditions, likely have contributed to the lower catches seen in the Oregon Central Coast subarea.

After consulting with ODFW, it was determined that in order for anglers to have the opportunity to achieve the overall Oregon Central Coast subarea allocation, with little risk of the subarea or coastwide allocation being exceeded, additional fishing dates are warranted. Therefore, through this action, NMFS is announcing fishing dates in July, August, September, and October that were not previously implemented in the final rule on April 3, 2024 (89 FR 22966).

Notice of these additional dates are announced in accordance with Federal regulations at 50 CFR 300.63(c) and also on the NMFS hotline at (206) 526-6667 or (800) 662-9825.

NMFS issues this action pursuant to the Northern Pacific Halibut Act of 1982. This action is taken under the regulatory authority at 50 CFR 300.63(c)(6), and is exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(3)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest. WDFW provided updated landings data to NMFS on July 9, 2024, showing that through June 30, fishery participants in the recreational fishery off of Washington had caught only 67 percent of the Puget Sound subarea allocation, 77 percent of the North Coast subarea allocation, and 76 percent of the South Coast subarea allocation; fishery participants in the Columbia River subarea had caught only 75 percent of the subarea allocation. On July 12, 2024, ODFW provided updated landings data to NMF, showing that through July 7, fishery participants in the recreational fishery off Oregon had caught only 44.8 percent of Central Coast subarea allocation. NMFS uses fishing rates from previous years to determine the number of recreational fishing dates needed to attain subarea allocations. Given the lower than expected catch rates in the Washington Puget Sound, North Coast, and South Coast subareas; the Columbia River subarea; and the Oregon Central Coast subarea, additional fishing dates are considered necessary to increase angler opportunity to reach the overall Washington and Oregon subarea allocations. This action should be implemented as soon as possible to allow fishery participants to take advantage of the additional season dates. As the fisheries close on September 30, 2024 in the Washington and Columbia River subareas, and on October 31, 2024 in the Oregon subareas, implementing this action through proposed and final rulemaking would undermine the benefit this action would provide to fishery participants. Without implementation of additional season dates in the Washington Puget Sound, North Coast, and South Coast subareas, the Columbia River subarea, and the Oregon Central Coast subarea, the overall Washington and Oregon allocations are unlikely to be harvested, thus limiting the economic benefits to the fishery participants and obstructing the goals of the 2024 Catch Sharing Plan. It is necessary that this rulemaking be implemented in a timely manner so that planning for additional season dates can take place, and to allow for business and personal decision making by the regulated public impacted by this action, which includes recreational charter fishing operations, associated port businesses, and private anglers who do not live near the coastal access points for this fishery, among others. To ensure the regulated public is fully aware of this action, notice of this regulatory action will be provided to anglers through a telephone hotline, news release, and by the relevant state Fish and Wildlife agencies. NMFS will receive public comments for 15 days after publication of this action, in accordance with 50 CFR 300.63(c)(6)(iv). No aspect of this action is controversial, and changes of this nature were anticipated in the process described in regulations at 50 CFR 300.63(c).

For the reasons discussed above, there is also good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effective date and make this action effective immediately upon filing for public inspection, as a delay in effectiveness of this action would constrain fishing opportunity and be inconsistent with the goals of the 2024 Catch Sharing Plan, as well as potentially limit the economic opportunity intended by this rule to the associated fishing communities. This inseason action is not expected to result in exceeding the allocation for these subareas. NMFS regulations allow the Regional Administrator to modify sport fishing periods, bag limits, size limits, days per calendar week, and subarea allocations, provided that the action allows allocation objectives to be met and will not result in exceeding the catch limit for the subarea. NMFS recently received information on the progress of landings in the recreational fisheries in Washington and Oregon subareas, indicating additional season dates for Washington and Oregon should be implemented in the fishery to ensure optimal harvest of the subarea allocations. As stated above, it is in the public interest that this action is not delayed, because a delay in the effectiveness of these new dates would not allow the allocation objectives of the recreational Pacific halibut fishery to be met.

Background

Regulations at 50 CFR 660.4 describe the U&A fishing areas of Indian Tribes with treaty fishing rights to species managed under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and the Northern Pacific Halibut Act of 1982 (Halibut Act, 16 U.S.C. 773c). Those regulations explain that the boundaries of a Tribe's fishing area may be revised as ordered by a Federal court. 50 CFR 660.4(a) and 50 CFR 300.64(i).

On November 16, 2023, the United States District Court for the Western District of Washington issued an order setting forth updated boundaries of the U&A fishing area of the Hoh Indian Tribe in the Pacific Ocean, based on a stipulation between the parties. United States v. Washington, C70-9213 RSM (W.D. Wash. Nov. 16, 2023) (Stipulation and Order Regarding Boundaries of Hoh Indian Tribe U&A). This action adjusts the boundary regulations at 50 CFR 660.4(a)(3) for fisheries managed under the Magnuson-Stevens Act and the regulations at 50 CFR 300.64(i) for fisheries managed under the Halibut Act to make them consistent with the court's order. The boundaries for fishing areas for the Tribes with treaty fishing rights in the EEZ must be consistent with Federal court orders describing these areas. Other boundaries and their supporting rationales described in previous rulemakings on other U&A fishing areas are not affected by this rulemaking.

The revised boundaries for the Hoh Indian Tribe U&A are as follows: A polygon commencing at the Pacific coast shoreline near the mouth of the Quillayute River, located at latitude 47°54′30″ north, longitude 124°38′31″ west; then proceeding west approximately forty nautical miles at that latitude to a northwestern point located at latitude 47°54′30″ north, longitude 125°38′18″ west; then proceeding in a southeasterly direction mirroring the coastline at a distance no farther than forty nautical miles from the mainland Pacific coast shoreline, to a point located at latitude 47°31′42″ north, longitude 125°20′26″ west, then proceeding east along that line of latitude approximately ten nautical miles to a point located at latitude 47°31′42″ north, longitude 125°5′48″ west, then proceeding in a southeasterly direction mirroring the coastline at a distance no farther than 30 nautical miles from the mainland Pacific coast shoreline to a point located at latitude 47°21′00″ north, longitude 125°2′52″ west; then proceeding east along that line of latitude to the Pacific coast shoreline near the mouth of the Quinault River, located at latitude 47°21′00″ north, longitude 124°18′8″ west.

Pursuant to section 305(d) of the Magnuson-Stevens Act and Section 5 of the Halibut Act, the NMFS Assistant Administrator has determined that the regulatory amendments associated with the court-ordered changes to Tribal U&A fishing areas, which this final rule implements, are necessary for conservation and management and are consistent with the Pacific Coast Groundfish Fishery Management Plan, the Magnuson-Stevens Act, the Halibut Act, and other applicable laws.

NMFS finds good cause to waive prior public notice and comment on the revisions to regulations in this final rule under 5 U.S.C. 553(d)(3) because affording the time necessary for notice and comment rulemaking for these changes would be impracticable and contrary to the public interest. The U.S. District Court has issued its final judgment and the boundaries adjudicated by the court are controlling. NMFS regulations must be modified consistent with the court order as quickly as possible to bring them into compliance with the legal requirements. It is further necessary to act quickly to modify the Tribal U&A fishing area boundaries in Title 50, part 660, to prevent confusion arising out of conflicting statements in the regulations and stipulation, which adds complexity to the management regime and could create problems for Tribal, State, and Federal management and enforcement. Furthermore, NMFS is not exercising any discretion in issuing this rule but only making the changes necessary to comply with the court order. For the same reasons, NMFS also finds good cause to waive the 30-day delay in effectiveness.

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

Because prior notice and opportunity for public comment are not required for this rule by 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are inapplicable.

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

This final rule does not contain policies with federalism or takings implications as those terms are defined in E.O. 13132 and E.O. 12630, respectively.

For the reasons set out in the preamble, 50 CFR parts 300 and 660 are amended as follows:

General Background

The Mid-Atlantic Fishery Management Council (Council) manages Atlantic mackerel, Illex squid, longfin squid, butterfish, and Atlantic chub mackerel under the Mackerel, Squid, and Butterfish Fishery Management Plan (FMP). The regulations implementing the FMP at 50 CFR part 648, subpart B, require the Council's Mackerel, Squid, and Butterfish Monitoring Committee to develop specification recommendations for each species based upon the acceptable biological catch (ABC) advice of the Council's Scientific and Statistical Committee (SSC). The ABC is the level of catch that accounts for scientific uncertainty in the estimate of the stock's defined overfishing limit (OFL). Specifications are the combined suite of commercial and recreational catch levels and management measures necessary to prevent such catch levels from being exceeded. Mackerel, Squid, and Butterfish FMP regulations require the specification of annual catch limits (ACL) and accountability measure (AM) provisions for butterfish and chub mackerel. Both squid species are exempt from the ACL/AM requirements because they have a life cycle of less than 1 year. In addition, the regulations require the specification of domestic annual harvest (DAH), the butterfish mortality cap in the longfin squid fishery, and initial optimum yield (IOY) for both squid species. As part of this process, the Council sets specifications for up to 3 years. These specifications are reviewed annually and may be revised by the Council based on updated information.

On July 27, 2023 (88 FR 48389), NMFS published a final rule in the Federal Register implementing 2023 specifications for the chub mackerel, butterfish, longfin squid, and Illex squid fisheries. This included projected 2024 butterfish specifications and projected 2024-2025 chub mackerel specifications. The Council's SSC met in March, May, and July 2023 to consider the 2024 longfin squid, Illex squid, chub mackerel, and butterfish specifications based upon the latest information. At those meetings, the SSC concluded that no adjustments to these species' ABCs were warranted. The Council finalized its recommendations for the 2024 Illex and longfin squid specifications and projected 2025 Illex and 2025-2026 longfin squid specifications during its April and August 2023 meetings. The Council reaffirmed the 2024 butterfish and 2024 and projected 2025 Atlantic chub mackerel specifications during its June 2023 meeting. During its December 2023 meeting, the Council also finalized recommendations for the 2024 and projected 2025 Atlantic mackerel specifications; however, those specifications were recently finalized through a separate final rule due to additional timing concerns (89 FR 25820, April 12, 2024).

The final 2024 and projected 2025 Illex squid specifications are identical to what was in place in 2023, in alignment with the Council's recommendation (table 1). NMFS and the Council will review the Illex squid specifications during future annual specifications processes following data updates each spring. The 2025 specifications projected here could change based on new information.

The final 2024 and projected 2025-2026 longfin squid specifications are nearly identical to what was in place in 2023, in alignment with the Council's recommendation. The only change is a slight increase in the longfin squid discard rate (from 2 percent to 2.16 percent). The background for this change is discussed in the proposed rule to implement these specifications (89 FR 28713, April 19, 2024), and therefore is not repeated here. The longfin squid IOY, DAH, and DAP are calculated by deducting a discard set-aside, calculated using the discard rate, from the ABC. The 0.16-percent increase in the discard rate results in a 0.17-percent decrease in the commercial quota (table 2). NMFS and the Council will review the longfin squid specifications during future annual specifications processes following data updates each spring. The 2025-2026 specifications projected here could change based on new information.

The percentage of the longfin squid quota allocated to each trimester during 2024-2026 remains unchanged from what was in place in 2023 (table 3).

As part of the final rule implementing 2023-2025 specifications for the Mackerel, Squid, and Butterfish FMP (88 FR 48389, July 27, 2023), NMFS projected 2024 butterfish specifications that would decrease the ABC and available quota by 12.7 percent relative to 2023. Even with this reduction, the projected 2024 butterfish quota was still above recent catch levels. This final rule reaffirms the previously projected 2024 butterfish specifications, in alignment with the Council's recommendation, as no new information suggests a need to change.

Background

The Pacific Coast Groundfish Fishery Management Plan (PCGFMP) and its implementing regulations at title 50 in the Code of Federal Regulations (CFR), part 660, subparts C through G, regulate fishing for over 90 species of groundfish off the coasts of Washington, Oregon, and California. The Pacific Fishery Management Council (Council) develops groundfish harvest specifications and management measures for 2-year periods ( i.e., a biennium). NMFS published the final rule to implement harvest specifications and management measures for the 2023-2024 biennium for most species managed under the PCGFMP on December 16, 2022 (87 FR 77007). In general, the management measures set at the start of the biennial harvest specifications cycle help the various sectors of the fishery attain, but not exceed, the catch limits for each stock. The Council, in coordination with Pacific Coast Treaty Indian Tribes and the States of Washington, Oregon, and California, recommends adjustments to the management measures during the fishing year to achieve this goal.

At its June 2024 meeting, the Council recommended inseason adjustments to commercial non-trawl trip limits for sablefish north of 36° N lat., widow rockfish north of 40°10′ N lat., and yellowtail rockfish north 40°10′ N lat. These adjustments are expected to improve attainment of these stocks in the non-trawl fishery. Pacific Coast groundfish fisheries are managed using harvest specifications or limits ( e.g., overfishing limits [OFL], acceptable biological catch [ABC], annual catch limits [ACL] and harvest guidelines [HG]) recommended biennially by the Council and based on the best scientific information available at that time (50 CFR 660.60(b)). During development of the harvest specifications, the Council also recommends management measures ( e.g., trip limits, area closures, and bag limits) that are meant to mitigate catch so as not to exceed the harvest specifications. The harvest specifications and mitigation measures developed for the 2023-2024 biennium used data collected through the 2021 fishing year. Each of the adjustments to mitigation measures discussed below are based on updated fisheries information that was unavailable when the analysis for the current harvest specifications was completed. As new fisheries data becomes available, adjustments to mitigation measures are projected so as to help harvesters achieve but not exceed the harvest limits.

Sablefish is an important commercial species on the U.S. West Coast with vessels targeting sablefish with both trawl and fixed gear (longlines and pots/traps). Sablefish is managed with a coast-wide OFL and ABC and ACLs that are apportioned north and south of 36° N lat. In 2024, the ACL for sablefish north of 36° N lat. is 7,730 metric tons (mt) with a fishery HG of 6,919 mt. The fishery HG north of 36° N lat. is further divided between the LE and OA sectors with 90.6 percent, or 6,269 mt, going to the LE sector and 9.4 percent, or 650 mt, going to the OA sector. From the 6,269 mt LE allocation, 395 mt is allocated to the LE fixed gear (LEFG) trip limit fishery.

At the June 2024 Council meeting, the Council's Groundfish Management Team (GMT) received requests from industry members and members of the Council's Groundfish Advisory Subpanel (GAP) to examine the potential to increase sablefish trips limits for the LEFG and OA fisheries north of 36° N lat. The intent of increasing trip limits would be to increase harvest opportunities for vessels targeting sablefish. Discussion with GAP and GMT members indicated that sablefish markets continue to be less lucrative than they were prior to 2020 and, consequently, that prices per pound may be a stronger predictor of participation than before, as some vessels opt to target other species instead. Therefore, for both of the northern sablefish sectors, the GMT provided data on 2024 sablefish prices to date, alongside calculated prices, to predict participation for the remainder of the year. This information can help interpret the fleetwide landings projections under each of the low, average, and high price scenarios. Predicted prices for the remainder of the year were calculated using prices in each respective period of recent year(s).

Tables 1 and 2 show projected 2024 landings and attainment under the three modeled price scenarios for status quo and for the new Council recommended trip limits for the LEFG (table 1) and OA (table 2) sectors north of 36° N lat. LEFG landings for the full year are projected to be 55-70 percent of the 2024 landings target under status quo trip limits. So far this year, five LEFG vessels have attained more than 90 percent of the status quo bimonthly limit, indicating that at least some vessels in the fleet would benefit from a trip limit increase. Therefore, the Council recommended Option 1, which projects fleetwide landings at 75-97 percent of the 2024 landings target.

OA landings north of 36° N lat. for the full year are projected to be 79-90 percent of the 2024 landings target under status quo trip limits. So far this year, three OA vessels have attained more than 90 percent of the status quo bimonthly limit, indicating that at least some vessels in the fleet would benefit from a trip limit increase. Therefore, the Council recommended Option 1, which projects fleetwide landings at 88-101 percent of the 2024 landings target.

Trip limit increases for sablefish are intended to increase attainment of the non-trawl HG. The proposed trip limit increases do not change projected impacts to co-occurring overfished species, compared to the impacts anticipated in the 2023-2024 harvest specifications, because the projected impacts to those species assume that the entire sablefish ACL is harvested. Therefore, the Council recommended and NMFS is implementing the proposed trip limit increases, by modifying table 2 (North) and table 2 (South) to part 660, subpart E, to reflect trip limit changes for the LEFG fishery north of 36° N lat. and increase the limits from “4,500 lb (2,041 kg) per week, not to exceed 9,000 lb (4,082 kg) per two months” to “7,000 lb (3,175 kg) per week, not to exceed 14,000 lb (6,350 kg) per two months”. NMFS is also implementing, by modifying table 3 (North) and table 3 (South) to part 660, subpart F, to reflect trip limit changes for the OA sablefish fishery north of 36° N lat. and increase the limits from “3,000 lb (1,361 kg) per week, not to exceed 6,000 lb (2,722 kg) per two months” to “3,500 lb (1,588 kg) per week, not to exceed 7,000 lb (3,175 kg) per two. These changes will be in effect until further revised.

The GMT also received a request from industry members at the June 2024 Council meeting to increase the yellowtail rockfish and widow rockfish OA and LEFG trip limits for the remainder of the year. Industry members stated that the abnormally challenging weather conditions have prevented fishing effort that would have typically already occurred this year and, therefore, an increase in trip limits could help make up for lost fishing opportunity once the weather improves.

Currently, between 42° and 40°10′ N lat., the non-trawl fleet in Federal waters is only permitted to use non-bottom contact gear within the Non-Trawl Rockfish Conservation Area (RCA) to access midwater shelf species due to actions taken in September (October 2, 2023, 88 FR 67656) and November (November 29, 2023, 88 FR 83354) of 2023 to mitigate California quillback rockfish encounters. The only current nearshore opportunity off northern California to target midwater rockfish (including yellowtail and widow rockfishes) stocks is with approved non-bottom contact hook-and-line gear configurations. As area closures and gear restrictions have required the fleet to fish offshore, where weather conditions can have a larger impact on smaller vessels typically prosecuting these trip limits, higher trip limits may allow those vessels to land larger volumes across fewer trips, thereby promoting safety at-sea and potentially reducing fuel and operational costs associated with traveling farther offshore.

Widow rockfish is managed with a coast-wide ACL. In 2024, the ACL for widow rockfish is 11,482 mt with a fishery HG of 11,243.7 mt. The fishery HG is further apportioned between the trawl and non-trawl sectors with 10,843.7 mt going to the trawl sector and 400 mt going to the non-trawl sector. Yellowtail rockfish are managed with stock-specific harvest specifications north of 40°10′ N lat. and within the Minor Shelf Rockfish complex south of 40°10′ N lat. In 2024, the ACL for yellowtail rockfish north of 40°10′ N lat. is 5,291 mt with a fishery HG of 4,263.3 mt. The fishery HG is further apportioned between the trawl and non-trawl sectors with 88 percent (3,751.7 mt) going to the trawl sector and 12 percent (511.6 mt) going to non-trawl.

LEFG and OA vessels currently land less than 0.1 percent of the non-trawl allocations of yellowtail and widow rockfishes. The trip limit increases may help facilitate the attainment of the National Standard 1 objective to attain but not exceed optimum yield, while posing very limited risk to co-occurring stocks. For example, canary rockfish are a co-occurring species of concern but are being attained well under their non-trawl commercial allocation. Therefore, the increase of yellowtail and widow rockfish trip limits would unlikely jeopardize their allocation nor create regulatory discards.

Table 3 below shows status quo and new Council recommend trip limits for widow rockfish north of 40°10′ N lat., and table 4 shows the GMT projected landings for 2024 under those limits. To date, fewer than three vessels operating in the LEFG sector have landed widow rockfish north of 40°10′ N lat. in 2024. None of these vessels have come within 50 percent of the trip limit in 2024. Therefore, the projection for the LEFG sector in table 4 does not change under status quo or the Council Recommendation. In the OA sector, there are 12 vessels operating that have landed widow rockfish to date in 2024. Fewer than 3 of these vessels have come within 50 percent of the trip limit.

There would be no conservation risk to the stock if the trip limits increase since it is expected that not many fishery participants would take advantage of the Council's recommended higher trip limits and under both options the sectors would remain well under one percent of the non-trawl allocation of 400 mt. Therefore, the Council recommended and NMFS is implementing higher trip limits, by modifying table 2 (North) to part 660, subpart E, and table 3 (North) to part 660, subpart F, for LEFG and OA widow rockfish north of 40°10′ N lat. as shown in table 3 below. This will allow fishery participants an opportunity to harvest a greater amount in fewer trips, when the weather permits, so as to promote safety at sea and improve attainment of the stock in the non-trawl fishery. These changes will be in effect until further revised.

Table 5 below shows status quo and new Council recommended trip limits for yellowtail rockfish north of 40°10′ N lat. and table 6 shows the projected landings under those limits. To date in 2024, only three vessels operating in the LEFG sector have landed yellowtail rockfish north of 40°10′ N lat. None of these vessels have come within 50 percent of the trip limit. Therefore, the projection of 2.3 mt in landings in the LEFG in 2024 does not change. In the OA sector, there are 44 vessels operating that have landed yellowtail rockfish to date in 2024, but similarly, none of the vessels have come within 50 percent of the trip limit. Therefore, it is not expected they would attain the limit, as they are still projected at 2.0 mt. regardless of the increase in trip limits.

In 2023, fewer than three vessels reached or exceeded their trip limits. There would be no conservation risk to the stock if trip limits increase since it is expected that both sectors would remain under one percent of the non-trawl allocation. Therefore, the Council recommended and NMFS is implementing, higher trip limits by modifying table 2 (North) to part 660, subpart E, and table 3 (North) to part 660, subpart F, to reflect trip limit changes for LEFG and OA yellowtail rockfish north of 40°10′ N lat., as shown in table 5 below, in order to promote safety at sea and increase opportunity for the fishery to achieve its 2024 catch limits. These changes will be in effect until further revised.

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

The 2024 Pacific cod TAC apportioned to vessels using jig gear in the Central Regulatory Area of the GOA is 309 metric tons (mt) as established by the final 2024 and 2025 harvest specifications for groundfish in the GOA (89 FR 15484, March 4, 2024).

In accordance with § 679.20(d)(1)(iii), the Regional Administrator has determined that the 2024 Pacific cod TAC apportioned to vessels using jig gear in the Central Regulatory Area of the GOA has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by vessels using jig gear in the Central Regulatory Area of the GOA.

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

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest, as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion, and would delay the closure of Pacific cod by vessels using jig gear in the Central Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of July 17, 2024.

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

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

The 2024 total allowable catch (TAC) of dusky rockfish in the West Yakutat District of the GOA is 84 metric tons (mt) as established by the final 2024 and 2025 harvest specifications for groundfish of the GOA (89 FR 15484, March 4, 2024).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2024 TAC of dusky rockfish in the West Yakutat District of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 54 mt, and is setting aside the remaining 30 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for dusky rockfish in the West Yakutat District of the GOA. While this closure is effective the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

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

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest, as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of directed fishing of dusky rockfish in the West Yakutat District of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of July 17, 2024.

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

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

The 2024 total allowable catch (TAC) of Pacific ocean perch in the West Yakutat District of the GOA is 2,110 metric tons (mt) as established by the final 2024 and 2025 harvest specifications for groundfish of the GOA (89 FR 15484, March 4, 2024).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2024 TAC of Pacific ocean perch in the West Yakutat District of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 2,010 mt, and is setting aside the remaining 100 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific ocean perch in the West Yakutat District of the GOA. While this closure is effective the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

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

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest, as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of directed fishing of Pacific ocean perch in the West Yakutat District of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of July 17, 2024.

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