On April 10, 2024, OPM issued a proposed rule (89 FR 25186) to abolish the Frederick, MD, NAF FWS wage area and define Frederick County, MD, to the Anne Arundel, MD, NAF FWS wage area, and Berkeley County, WV, to the Washington, DC, NAF FWS wage area. The Federal Prevailing Rate Advisory Committee, the national labor-management committee responsible for advising OPM on matters concerning the pay of FWS employees, reviewed and recommended these changes by consensus.

The proposed rule had a 30-day comment period, during which OPM received no comments. Therefore, this final rule adopts the proposed rule at 89 FR 25186 without change.

Section 5343 of title 5, U.S. Code, provides OPM with the authority and responsibility to define the boundaries of NAF FWS wage areas. Any changes in wage area definitions can have the long-term effect of increasing pay for Federal employees in affected locations. OPM expects this final rule to impact approximately 20 NAF FWS employees. Considering the small number of employees affected, OPM does not anticipate this rule will substantially impact local economies or have a large impact in local labor markets. As this and future wage area changes may impact higher volumes of employees in geographical areas and could rise to the level of impacting local labor markets, OPM will continue to study the implications of such impacts in future rules as needed.

Executive Orders 13563, 12866, and 14094 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). This rule is not a “significant regulatory action” under the provisions of Executive Order 14094 and, therefore, was not reviewed by OMB.

The Director of OPM certifies that this rule will not have a significant economic impact on a substantial number of small entities.

OPM has examined this rule in accordance with Executive Order 13132, Federalism, and has determined that this rule will not have any negative impact on the rights, roles and responsibilities of State, local, or tribal governments.

This regulation meets the applicable standard set forth in Executive Order 12988.

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

OMB's Office of Information and Regulatory Affairs has determined this rule does not satisfy the criteria listed in 5 U.S.C. 804(2). OPM will submit to Congress and the Comptroller General of the United States a report regarding the issuance of this rule before its effective date.

This rule does not impose any reporting or record-keeping requirements subject to the Paperwork Reduction Act.

Accordingly, OPM is amending 5 CFR part 532 as follows:

Table of Contents I. Obtaining Information and Submitting Comments II. Rulemaking Procedure III. Background IV. Discussion V. Plain Writing VI. National Environmental Policy Act VII. Paperwork Reduction Act VIII. Congressional Review Act I. Obtaining Information and Submitting Comments A. Obtaining Information

Please refer to Docket ID NRC-2023-0210 when contacting the NRC about the availability of information for this action. You may obtain publicly available information related to this action by any of the following methods:

• Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2023-0210.

• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly available documents online in the ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, select “Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301- 415-4737, or by email to PDR.Resource@nrc.gov.

• NRC's PDR: The NRC PDR, where you may examine and order copies of publicly available documents, is open by appointment. To make an appointment to visit the PDR, please send an email to PDR.Resource@nrc.gov or call 1-800-397-4209 or 301-415-4737, between 8 a.m. and 4 p.m. eastern time (ET), Monday through Friday, except Federal holidays.

The NRC encourages electronic comment submission through the Federal rulemaking website ( https://www.regulations.gov ). Please include Docket ID NRC-2023-0210 in your comment submission.

The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at https://www.regulations.gov as well as enter the comment submissions into ADAMS. The NRC does not routinely edit comment submissions to remove identifying or contact information.

If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.

Because the NRC considers this action to be non-controversial, the NRC is using the “direct final rule procedure” for this rule. This amendment is effective on November 5, 2024. However, if the NRC receives significant adverse comments on this direct final rule by September 23, 2024, then the NRC will publish a document that withdraws this action and will address the comments received in a subsequent final rule or as otherwise appropriate. In general, absent significant modifications to the proposed revisions requiring republication, the NRC will not initiate a second comment period on this action.

A significant adverse comment is a comment where the commenter explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. A comment is adverse and significant if:

(1) The comment opposes the rule and provides a reason sufficient to require a substantive response in a notice-and-comment process. For example, a substantive response is required when:

(a) The comment causes the NRC to reevaluate (or reconsider) its position or conduct additional analysis;

(b) The comment raises an issue serious enough to warrant a substantive response to clarify or complete the record; or

(c) The comment raises a relevant issue that was not previously addressed or considered by the NRC.

(2) The comment proposes a change or an addition to the rule, and it is apparent that the rule would be ineffective or unacceptable without incorporation of the change or addition.

(3) The comment causes the NRC to make a change (other than editorial) to the rule.

For detailed instructions on filing comments, please see the ADDRESSES section of this document.

The NRC's regulations governing the conduct of adjudicatory proceedings before the agency are contained in part 2 of title 10 of the Code of Federal Regulations (10 CFR), “Agency Rules of Practice and Procedure.” Periodically, the NRC has amended these rules, including adopting changes in 2004 to enhance efficiency; in 2012 to promote fairness, efficiency, and openness; in 2016 to reflect technological advances and current agency practice; and in 2020 to reflect Commission case law, Supreme Court precedent, and current agency practice. Since the last update to the agency's rules of practice and procedure, the NRC has identified additional provisions that should be updated to improve access to documents and make e-filing rules technology neutral, to delete an obsolete regulation, to clarify the applicability of Subpart L and Subpart N procedures, to enhance internal consistency for page limit requirements, to enhance consistency with the Federal Rules of Evidence for “true copies,” and to better reflect current Atomic Safety and Licensing Board Panel practice regarding admission of evidence.

This direct final rule makes targeted changes to §§ 2.4, 2.302, 2.304, 2.305, and 2.306 to clarify and make technology neutral the description of the NRC's E-Filing system in 10 CFR part 2. Most significantly, this direct final rule eliminates references to “digital ID certificate” and “digital ID certificates” throughout 10 CFR part 2. The NRC is removing the definitions for “Digital ID certification” and “NRC Public Document Room,” revising existing definitions for “Electronic Hearing Docket” and “Public Document Room,” and adding new definitions for “Identification and authentication,” and “Portable storage media.” The NRC anticipates that future updates to its E-Filing system will eliminate the need for participants to obtain digital ID certificates and will instead use a more modern method for electronic identification and credentialing. Therefore, these changes will revise 10 CFR part 2 to accommodate methods of electronic identification and credentialing other than the use of digital ID certificates. These changes also will clarify the requirements related to exemptions from the use of the E-filing system and specify email as an alternative filing method pursuant to an exemption.

This direct final rule removes and reserves § 2.203. Section 2.203 currently applies to settlement and compromise in enforcement proceedings; however, § 2.203 is duplicative of § 2.338(i), which governs settlement generally. This change also is consistent with the apparent intent of the Commission to delete § 2.203 in the 2004 revision to part 2 (69 FR 2182, 2225), which consolidated settlement requirements into § 2.338 and removed other references to “Chief Administrative Law Judge.”

This direct final rule revises §§ 2.337(d) and 2.711(b) and (h) to use consistent terminology with Rule 1003 of the Federal Rules of Evidence, “Admissibility of Duplicates,” which provides that a duplicate is admissible to the same extent as the original unless a genuine question is raised about the original's authenticity or the circumstances make it unfair to admit the duplicate. As a result, this revision would streamline the process for the admission of duplicates. In addition, this direct final rule revises these regulations to enhance consistency with the Atomic Safety and Licensing Board Panel's practice for marking exhibits.

This direct final rule revises § 2.1200 to clarify the scope of Subpart L as not governing all proceedings and to simplify text that was duplicative of 10 CFR 2.310.

This direct final rule revises § 2.1400 to clarify the scope of Subpart N as an opt-in set of procedures available for certain proceedings and to simplify text that was duplicative of 10 CFR 2.310.

This direct final rule revises § 2.341(b)(2) to make the page-limit requirement for petitions for review consistent with the page-limit requirement in 10 CFR 2.341(c) for briefs upon review by increasing the page limit for petitions for review from twenty-five (25) pages to (30) thirty pages.

This direct final rule revises § 2.1213(a) by increasing the time to file a request for a stay of staff action under § 2.1202(a) from 5 days to 7 days. This change will make the time to file a request for a stay consistent, regardless of the day of the week staff issues a notification of license issuance pursuant to § 2.1202(a).

This direct final rule revises § 2.711(b) to reflect current Atomic Safety and Licensing Board Panel practice by requiring written testimony to be offered and admitted into evidence as an exhibit rather than requiring the written testimony to be incorporated into the transcript of record as if read, though it may still be incorporated into the transcript as if read at the discretion of the presiding officer.

The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, and well-organized manner. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31885).

The NRC has determined that this final rule is the type of action described in 10 CFR 51.22(c)(1), which categorically excludes from environmental review rules that are corrective or of a minor, nonpolicy nature and do not substantially modify existing regulations. Therefore, neither an environmental impact statement nor environmental assessment has been prepared for this final rule.

This final rule does not contain a collection of information as defined in the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) and, therefore, is not subject to the requirements of the Paperwork Reduction Act of 1995.

The NRC may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the document requesting or requiring the collection displays a currently valid Office of Management and Budget control number.

This final rule is not a rule as defined in the Congressional Review Act (5 U.S.C. 801-808).

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR part 2.

This final rule addresses the use of supplemental restraint systems (SRS) in civil aircraft operations. An SRS is a device used to secure an individual inside an aircraft when that person is not secured by an FAA-approved safety belt and, if installed, shoulder harness, or an approved child restraint system. SRS are not installed on the aircraft pursuant to a Type Certificate, Supplemental Type Certificate, approved major alteration, or other FAA approval. An SRS consists of a harness secured around the torso of the individual using the SRS and a lanyard that connects the harness to an FAA-approved airframe attachment point inside the aircraft.

On March 11, 2018, five passengers drowned when the open-door helicopter in which they were traveling ditched  1 on the East River in New York, New York. They were unable to exit the aircraft because the harness/tether system each used hindered their egress. As a result of preliminary information discovered during the investigation of this accident, on March 19, 2018, the National Transportation Safety Board (NTSB) issued Urgent Safety Recommendation A-18-012, which recommended that the FAA prohibit all open-door aircraft operations using passenger harness systems unless the harness system allows passengers to rapidly release the harness with minimal difficulty and without having to cut or forcefully remove the harness. 2 On March 22, 2018, the FAA issued an Emergency Order of Prohibition titled “Operators and Pilots of `Doors Off' Flights for Compensation or Hire”  3 to all operators and pilots of flights for compensation or hire with the doors opened or removed in the United States or using aircraft registered in the United States for doors-off flights. The Emergency Order of Prohibition prohibits the use of supplemental passenger restraint systems (SPRS) that cannot be released quickly in an emergency. 4 At the time of the accident, no rules specifically addressed aircraft operations conducted with the use of SRS, 5 including during operations with doors opened or removed.

On November 21, 2023, the FAA published a notice of proposed rulemaking (NPRM) proposing to prohibit civil aircraft operations conducted with SRS unless operators meet certain requirements for ensuring passenger and crewmember safety during all phases of the operation. 6 After the comment period closed January 22, 2024, the FAA reviewed the ten comments to the NPRM. This rule finalizes the NPRM as proposed, with a few revisions for clarity as discussed throughout this preamble.

This final rule addresses recommendations from the NTSB and the Department of Transportation Office of Inspector General. 7 Additionally, this final rule codifies, with updates, an Emergency Order currently in effect addressing safety concerns regarding the use of supplemental restraints.

Generally, this final rule prohibits civil aircraft operations when individuals are secured by SRS except as provided in § 91.108. In addition, flight operations with doors opened or removed are prohibited when individuals are using SRS except under two scenarios. The first scenario is when each individual  8 occupies an FAA-approved seat or berth with a safety belt and, if installed, shoulder harness, properly secured about them or occupies a properly secured and approved child restraint system during the entire flight. The second scenario is if each individual occupies an FAA-approved seat or berth with a safety belt and, if installed, shoulder harness, properly secured about them during movement on the surface, takeoff, and landing; during other phases of flight, if permitted by the pilot in command (PIC), 9 the individual may use an SRS that meets all requirements in this rule. The operator generally will provide the SRS to individuals who seek to use the SRS during the flight, but in some cases, an individual may opt to provide their own SRS if it meets the requirements of this rule and the PIC approves use of the SRS.

This final rule requires the SRS to have a release mechanism that can be operated quickly by the passenger using the SRS with minimal difficulty. The release mechanism must be located on the front or side of the harness in a place easily accessible to and visible by the individual using the SRS and must prevent inadvertent release. Also, the release mechanism cannot require the use of a knife to cut the restraint, the use of any other additional tool, or the assistance of any other individual to release the SRS. This final rule also requires the SRS to not impede egress from the aircraft in an emergency after being released.

This final rule requires the SRS to be connected to an FAA-approved airframe attachment point or points rated equal to or greater than the combined weight of all the individuals using an SRS attached to that same point, but it cannot be connected to any airframe attachment point located in the flightdeck. Additionally, the rule requires that the SRS lanyard secures around the torso of the individual using the SRS and ensures the torso of the individual remains inside the aircraft at all times. The rule also prohibits the SRS from connecting to any seatbelt or shoulder harness attachment point unless the attachment point is FAA-approved, and nothing may attach to the SRS that is not relevant to its function. In addition, the SRS must fit the individual using it based on the sizing criteria for which the SRS is rated.

This final rule also requires operators conducting flight operations where passengers use an SRS to provide an enhanced passenger safety briefing. Further, this rule requires passengers who seek to use an SRS during flight operations to demonstrate their ability to use, secure, and release the FAA-approved safety belts and, if installed, shoulder harnesses, as well as their ability to release quickly the SRS with no assistance and with minimal difficulty. A passenger who cannot meet the demonstration requirements of the rule is prohibited from using an SRS; however, they would be permitted to participate in the flight if they occupy an FAA-approved seat or berth with a safety belt and, if installed, shoulder harness, properly secured about them during operations when the doors are opened or removed or when otherwise required by regulations. Only those passengers who have reached their fifteenth birthday can use an SRS during flight operations, and no individual using an SRS can occupy a seat in the flightdeck. In addition, this final rule prohibits individuals who occupy a child restraint system from also using an SRS. It also prohibits a child who is less than two years old from being held (1) by an adult who is using an SRS or (2) when the aircraft doors are opened or removed even if the adult is properly secured by an FAA-approved safety belt.

Finally, the rule outlines the responsibilities of the PIC, including determining whether an SRS complies with the requirements of the rule and whether SRS may be used during flight operations.

The FAA's authority to issue rules on aviation safety is found in Title 49 of the United States Code (49 U.S.C.). Subtitle I of 49 U.S.C., specifically section 106, describes the authority of the FAA Administrator. Subtitle VII of 49 U.S.C., Aviation Programs, describes in more detail the scope of the agency's authority.

The FAA promulgates this rulemaking under the authority described in 49 U.S.C. 106(f), which establishes the authority of the Administrator to promulgate regulations and rules, and 49 U.S.C. 44701(a)(5), which requires the Administrator to promote safe flight of civil aircraft in air commerce by prescribing regulations and setting minimum standards for other practices, methods, and procedures necessary for safety in air commerce and national security.

The FAA received and considered 10 comments on the NPRM, four of which were from organizations: Condon & Forsyth, Helicopter Association International (HAI), the NTSB, and Tuckamore Aviation. Four of the commenters supported the rule with no changes, five commenters expressed support but also proposed changes, and one commenter opposed the proposed rule in its entirety.

This rule finalizes the NPRM as proposed with a few revisions to maximize clarity or after consideration in response to comments. The FAA is updating § 91.108 paragraphs (b)(2), (c)(2), (e)(1)(i), and the definition of “supplemental restraint system” to include “FAA-approved” airframe attachment point to ensure that the SRS can only be attached to an airframe attachment point when the FAA has determined that point complies with the applicable part 21 approval requirements. The FAA is also adding a prohibition that the SRS cannot be connected to any seatbelt or shoulder harness attachment point(s) unless the attachment is FAA-approved as described in § 91.108 paragraph (e)(1)(i). The FAA is amending the proposed regulatory text to prohibit anything from attaching to the SRS that is not relevant to its function. The FAA also is moving the SRS definition from § 91.108 to § 1.1. Finally, the FAA made some grammatical changes to the regulatory text that are technical in nature and that do not substantively change the previous intent of the provisions.

The FAA proposed in § 91.108(a) that, except as provided in this rule, no person may conduct a civil aircraft operation in which any individual on board is secured with an SRS. The FAA also proposed in § 91.108(b) that no person may operate a civil aircraft with the doors opened or removed unless (1) each individual on board occupies an approved seat or berth with a safety belt and, if installed, shoulder harness during all phases of flight or (2) each individual occupies an approved seat or berth with a safety belt and, if installed, shoulder harness during movement on the surface, takeoff, and landing and is secured for the remainder of the flight by an SRS. As part of the proposal, the FAA applied some of the requirements to all “individuals” using an SRS, not just passengers.

Tuckamore Aviation commented that the rule should only apply to passengers and not crewmembers because it introduces conflicting definitions and requirements to existing safety guidance, established equipment use, and practices and procedures established by other government agencies for crewmembers. Further, Tuckamore Aviation commented that all public aircraft operations need to be exempt from proposed 14 CFR 91.108.

The FAA disagrees with Tuckamore Aviation's assertion that the rule should only apply to passengers and not crewmembers. Applying the rule to all individuals on board the aircraft will help mitigate the risks associated with using SRS, particularly during operations with doors opened or removed, and will ensure the highest level of safety when conducting such operations. The safety risks involved in operations using SRS do not apply only to passengers—they apply to all individuals on board, including the crew. As a result, to ensure the safety of all individuals secured by an SRS during civil aircraft operations, the FAA finalizes the language as proposed and applies the requirements of the rule (with the exception of the passenger briefing and demonstration) to all individuals, not just passengers onboard the aircraft.

The FAA agrees with Tuckamore that all public aircraft operations (PAO) should be exempt from the rule, but it disagrees with Tuckamore's characterization of PAO. The status of an aircraft operation is either civil or public. If an aircraft is operating under public status, § 91.108 would not apply. If an aircraft is operating under civil status, § 91.108 would apply unless the operator applies for an exemption. Contrary to Tuckamore's assertion, operations conducted by civil aircraft under contract with a valid government entity do constitute PAO as long as the contracting entity has filed a declaration letter with the local Flight Standards District Office (FSDO). Otherwise, the FAA considers the operator to be operating under civil status. Moreover, operations by a PAO contractor are, and must be, distinguishable from their civil aircraft operations. There is no mixed status of both civil and public aircraft operations. PAO status is determined on a flight-by-flight basis, and the operator should determine the nature of the flight prior to the operation to determine the applicability of § 91.108 to its operation. 10 As a result of the foregoing, the FAA adopts the language as proposed and applies § 91.108 to civil aircraft operations, thereby excluding public aircraft operations. The FAA removed the word “registered” from proposed § 91.108(a) and (b)(1) as it is redundant to the rule's application to civil aircraft—this revision does not change the applicability of this section.

Finally, the FAA notes that it amended the language in § 91.108 paragraphs (a) and (b)(2). In paragraph (a), the FAA made a technical amendment by adding a cross-reference to the definition of “supplemental restraint system” under § 1.1, further highlighting that the term is formally defined under § 1.1. 11 The FAA also amended paragraph (b)(2) by adding a reference to an “FAA-approved” airframe attachment point. This change reflects a similar change made in paragraph (e)(1)(i) in response to comments, and it highlights the fact that an SRS can only be attached to an airframe attachment point when the FAA has determined that point complies with the applicable part 21 approval requirements. 12 As a result, the FAA is adopting the language in paragraphs (a) and (b)(2) as amended.

The FAA proposed that each SRS have a harness that secures around the individual's torso and a lanyard that connects the harness to an airframe attachment point or points, ensuring that the individual's torso remains inside the aircraft at all times. The FAA did not receive comments on this proposed provision; however, as with paragraph (b)(2), the FAA has included “FAA-approved” in reference to the attachment points for the same reasons cited previously. Therefore, the FAA is adopting the language in paragraph (c)(1) as proposed and the language in paragraph (c)(2) as amended.

The FAA proposed that an SRS must not impede egress from the aircraft in an emergency after being released. The FAA did not receive comments on this proposed provision and adopts the language as proposed.

As part of the SRS design requirements, the FAA proposed an SRS have a release mechanism that (1) an individual can quickly operate with minimal difficulty, (2) is attached to the front or side of the harness in a location easily accessible to and visible by the individual using it, (3) prevents inadvertent release, and (4) requires that the supplemental restraint system can be released without the use of a knife to cut the restraint, any other additional tool, or the assistance of any other individual to release the SRS.

The NTSB commented that the final rule should include standards that are specific to the operational environment in which an SRS is intended to be used to prevent certain quick release mechanisms from being susceptible to inadvertent release by neighboring occupants if they are seated close to each other.

The FAA has determined that the language in the rule is appropriately scoped to encompass any type of inadvertent release and in any type of operational environment. “Prevents inadvertent release” includes inadvertent release by the occupant of the SRS as well as any people proximate to the occupant of the SRS. The FAA amends § 91.108(c)(4)(iv), which previously set forth the requirement in the negative. This paragraph now states that an SRS must have a release mechanism that “can be released without the use of a knife to cut the restraint, and without any additional tool or the assistance of any other individual.” This grammatical change is only technical in nature and does not substantively change the previous intent of the provision. The FAA did not make any other changes to paragraph (c)(4) and adopts the language as amended.

The FAA proposed to allow an individual to provide an SRS for use during a flight. The FAA explained that, in some cases, an individual ( e.g., professional photographer, fire suppression technician, wildlife net gunner, etc.) may have access to an SRS and want to use it on different operators' aircraft. For an individual providing their own SRS, the FAA proposed that they must confirm with the PIC, either verbally or in writing, as determined by the PIC, the SRS's continued serviceability and readiness for its intended purposes. In addition, the FAA proposed to require that each individual providing their own SRS complies with the sizing criteria for which the SRS is rated.

Two commenters, including Tuckamore Aviation, commented that individuals providing their own SRS for a flight should be required to present written confirmation of their SRS's serviceability, readiness, and size rating compliance. The commenters stated it is reasonable to expect an individual to have a written record of the inspection or an authorized release certificate under a maintenance release and that it is unreasonable to expect the aircraft operator or PIC to accept a verbal confirmation.

The FAA disagrees with the commenters. The rule is intended to provide the PIC flexibility in determining what method they will use for confirmation of the system's continued serviceability and readiness for its intended purposes. If a PIC determines written confirmation is necessary, they have the discretion to require that type of confirmation before the individual can occupy the SRS during flight operations.

The FAA also received a comment from Tuckamore Aviation stating that verification of continued serviceability and readiness of an SRS should be the responsibility of whoever is providing the SRS, whether it is the owner/operator or the individual.

The FAA agrees with Tuckamore Aviation. An individual providing their own SRS should be responsible for ensuring the system's continued serviceability and readiness for its intended purpose. That requirement is outlined in § 91.108(d)(1). The FAA also agrees that an operator that provides any SRS for their aircraft operations should be responsible for ensuring the SRS's serviceability and readiness because they are in the best position to make these determinations. As mentioned in the NPRM, one way to determine the SRS's serviceability and readiness is by ensuring the SRS is inspected and maintained in accordance with the manufacturer's instructions. 13 It would be unreasonable to place this onus on the PIC, who is not responsible for maintaining and inspecting SRS that an operator or individual provides.

The same rationale for paragraph (d)(1) also applies to paragraph (d)(2). The FAA determined that, in addition to an individual providing their own SRS, an operator that provides an SRS should be the responsible entity for ensuring that the individual who will occupy the SRS complies with the sizing criteria for which the system is rated. Whoever provides the SRS is ultimately in the best position to know an SRS's sizing criteria and to determine whether the individual who will occupy the system meets those criteria. As a result, the FAA will require an operator and an individual providing their own SRS to (1) confirm with the PIC, either verbally or in writing, that the system is serviceable and ready for its intended purpose, and (2) ensure the individual who will occupy the SRS complies with the sizing criteria for which the system is rated. The FAA therefore amends the language in paragraphs (d)(1) and (2) as described to ensure responsibility is placed on the appropriate entity.

The FAA proposed under § 91.108(e)(1)(i) requiring a qualified individual to attach the SRS lanyard to an airframe attachment point(s) with a rated strength equal to or greater than the total weight of the occupant (or the combined weight if there is more than one occupant attached to an attachment point). The FAA received four comments regarding attachment points, how they are identified, and if they are FAA-approved.

Two commenters, including Tuckamore Aviation, commented that an approved airframe attachment point should be limited to existing hard points or mooring points identified by aircraft original equipment manufacturers (OEMs), a Supplemental Type Certificate (STC) hard point, or approved through engineering analysis. The commenters noted that weight of passengers considers only static loading and that the FAA should use the limit load requirements of either 14 CFR part 27 or part 29.

Another commenter stated that specific language defining exactly what type of anchor point may be used with an SRS would be beneficial. The commenter recommended that the FAA only allow “hard points” or “anchor points” specifically designed for restraint systems to be used in conjunction with an SRS and to not allow seat mounts, seat frames, etc., to be used with an SRS.

The FAA agrees with the commenters that clarification on the type of airframe attachment point is necessary. In order to ensure that an SRS will provide restraint to the user when in use, pilots and operators need to know how to identify an approved airframe attachment point. The FAA has revised the regulatory text to only allow an SRS to be connected to an FAA-approved airframe attachment point or points rated equal to or greater than the weight of the individual using the supplemental restraint system (or the combined weight if there is more than one supplemental restraint system attached to an attachment point). Adding “FAA-approved” ensures that the SRS can only be attached to an airframe attachment point when the FAA has determined that point complies with the applicable part 21 approval requirements. 14 The FAA removed the word “strength” from paragraph (e)(1)(i) and instead focuses on the weight of the individual. Focusing on the weight of the individual reflects the fact that attachment point ratings are developed for all possible load conditions as long as the weight of the individual does not exceed the weight for which the attachment point is rated. Ultimately, the FAA has determined that any FAA-approved attachment point that is rated for a given individual's weight may be safely used for all load conditions in accordance with the airworthiness requirements ( e.g., applicable part 21 approval requirements). 15 Thus, the attachment point will have sufficient strength to safely restrain the individual using an SRS for all flight load conditions. The FAA acknowledges that the commenter suggested that SRS only be allowed to attach to hard points or anchor points specifically designed for SRS. The FAA has determined that adding “FAA-approved” to the rule language achieves the same objective by specifying that the attachment points must have been evaluated by the FAA to allow an SRS to be attached to it. As a result of the foregoing, the FAA finalizes the language in paragraph (e)(1)(i) as amended.

The FAA proposed under § 91.108(e)(1)(ii) that no SRS may be connected to any airframe attachment point located in the flightdeck. The FAA did not receive comments on this specific proposed provision; however, it did receive comments regarding prohibiting individuals seated in the flightdeck from using an SRS. For a discussion of those comments, see section IV.N. of this preamble. Because the FAA did not receive comments regarding airframe attachment points in the flightdeck, the FAA is adopting the language as proposed.

In the final comment pertaining to attachment points, the NTSB expressed concern that operators may use seat belt attachment points for SRS unless specifically prohibited, which may increase loads on seat belt and shoulder harness attachment points during emergency landing conditions. The NTSB urged the FAA to prohibit SRS from being attached to seat belt attachment points on the airframe.

The FAA agrees. In response to the NTSB's concern about attaching an SRS to a seatbelt or shoulder harness attachment point, the FAA added a requirement for FAA approval under § 91.108(e)(1)(iii) prohibiting an SRS from attaching to any seatbelt or shoulder harness attachment point(s) unless the attachment point is FAA-approved, meaning the attachment point or points is rated equal to or greater than the weight of the individual using the supplemental restraint system (or the combined weight if there is more than one supplemental restraint system attached to an attachment point). This change ensures that an SRS is attached only to attachment points that the FAA has determined comply with the applicable part 21 approval requirements. Therefore, the FAA finalizes the new language in paragraph (e)(1)(iii) as amended.

The FAA proposed that the SRS must fit the individual using it based on the sizing criteria for which the SRS is rated. The FAA did not receive comments on this proposed provision. Therefore, the FAA is adopting the language as proposed.

In addition to the other points raised by the NTSB, the NTSB commented that the proposed rule did not address whether operators and individuals may secure additional items to the SRS that are not relevant to its function. The NTSB believed the final rule should prohibit any items that are not relevant to the function of the SRS from being secured to it.

The FAA agrees with the NTSB. Any items attached to the SRS that are not relevant to its function could inhibit proper function of the SRS, could prevent quick release of the SRS, and could impede egress. As a result, the FAA has added a new paragraph (e)(3) that states, “Nothing may attach to the supplemental restraint system that is not relevant to its function as defined under § 1.1 of this chapter.” Adding this paragraph will help ensure that nothing is attached to the SRS that interferes with the system's proper function or interferes with an individual's ability to quickly egress the aircraft.

The FAA proposed that regardless of who provides the SRS, the PIC has the overall responsibility to ensure that the SRS meets the requirements of § 91.108, and the PIC cannot permit an individual to use an SRS that does not meet the requirements of the rule. The FAA also proposed that the PIC must ensure the SRS's continued serviceability and readiness for its intended purpose (if provided by the operator or PIC) and ensure any individual using an SRS provided by the operator or PIC complies with the SRS sizing criteria. Finally, the FAA proposed that the PIC has final authority regarding whether the SRS may be used during flight operations and whether to authorize an individual to release the FAA-approved safety belt and, if installed, shoulder harness and remain secured only by the SRS.

As mentioned in section IV.E of this preamble, Tuckamore Aviation commented that the operator/owner or individual providing the SRS should be responsible for ensuring its continued serviceability and readiness for its intended purpose. The FAA agrees for the reasons cited previously and has revised paragraph (f)(2) accordingly, which mirrors the amendments in paragraph (d)(1). The FAA amends that paragraph to indicate that before each takeoff, the PIC must receive confirmation from the operator or any individual providing an SRS of the system's continued serviceability and readiness for its intended purpose. The PIC would no longer be responsible for ensuring the SRS is adequately maintained and inspected; instead, the PIC is simply responsible for receiving confirmation from the operator or any individuals that their SRS are serviceable and ready for use. The FAA did not receive comments on paragraphs (f)(1), (3), (4), or (5). As a result of the foregoing, the FAA is adopting the language in paragraphs (f)(1) and (f)(3) through (5) as proposed and is adopting the language in paragraph (f)(2) as amended.

The FAA proposed to require a passenger briefing on how to use, secure, and release an SRS during a flight. The FAA also proposed to require that each passenger has been briefed on means of direct communication and notification between crewmembers and passengers. The FAA did not receive comments on this proposed provision. Therefore, the FAA is adopting the language as proposed.

The FAA proposed a requirement that all passengers using an SRS demonstrate to the PIC, a crewmember, or other qualified person designated by the operator their ability to use, secure, and release the FAA-approved safety belts and, if installed, shoulder harnesses, as well as their ability to release the SRS quickly without assistance and with minimal difficulty. The FAA did not receive comments on this proposed provision. Therefore, the FAA is adopting the language as proposed.

The FAA proposed that if an individual cannot demonstrate that they are able to use, secure, and release the FAA-approved safety belt and, if installed, shoulder harness, and able to release quickly the SRS with no assistance and with minimal difficulty, the individual would be prohibited from occupying or using an SRS during the flight. The FAA did not receive comments on this proposed provision; however, the FAA intended paragraphs (i)(1)(i) and (ii) to be required separately rather than together and therefore amends the conjunction between (i)(1)(i) and (ii) from “and” to “or.” The failure to meet either of the two conditions is grounds for prohibiting the use of an SRS by that individual. The FAA therefore amends the regulatory text and is adopting the language in paragraph (i)(1) as amended. In addition, because the FAA has moved the definition of SRS from § 91.108 to § 1.1, the FAA revised the introductory text under § 91.108(i) to reference § 1.1 instead of paragraph (l) and adopts the revised text as final. 16

In § 91.108(i)(2), the FAA proposed prohibiting anyone less than 15 years of age from using an SRS. Condon & Forsyth recommended that paragraph (i)(2) be deleted in its entirety because Condon & Forsyth believed it is arbitrary, overly broad, and unnecessary due to the requirements of proposed § 91.108(h) ( Passenger demonstration ) and § 91.108(e)(2), which requires an SRS to fit the individual using it based on the sizing criteria for which the SRS is rated.

The FAA disagrees with the commenter. Evacuation in an emergency landing is a highly stressful event. The purpose of the age restriction is to ensure that occupants of an SRS are able to release themselves in an emergency as well as not impede egress from the aircraft for themselves or the other occupants. In the Exit Row Seating rule, the FAA determined that 15 years of age is sufficient to perform the complex task of opening an emergency exit in an exit row and that younger individuals cannot be relied upon to perform a complex task in an emergency. 17 In that final rule, the FAA cited a study entitled “Survival in Emergency Escape from Passenger Aircraft,” which reviewed human factors relating to survival and the behavior of the passengers. 18 The final rule also cited a memorandum based on the Civil Aerospace Medical Institute's (CAMI) “Accident/Incident Bio-Medical Data Reports” containing over 3,000 entries. 19 The study concluded that survival depends largely on the ability of the passenger to exit the aircraft, and the memorandum stated that extreme youth is a factor that generally impedes rapid evacuation. 20

The FAA determined that the scenarios and analysis in the Exit Row Seating final rule are applicable to the release of an SRS in emergency conditions. The FAA has ample data from CAMI showing that children may not have the capacity to act quickly in an emergency, further supporting the FAA's position that children under 15 years of age should not be encumbered by an SRS when needing to escape during an emergency. The inability of a child to egress in an emergency as a result of an SRS would not only endanger the child, it could also endanger other individuals in the aircraft. In addition, since the Exit Row Seating rule took effect over thirty years ago, there have been no data showing that 15 years of age is an inappropriate metric for aircraft emergencies. The FAA therefore responds to the commenter that its determination of 15 years of age was not arbitrary, overly broad, or capricious because it was based on previous studies, data, and observations. Moreover, there is no precedent for individuals younger than 15 to act in an emergency and in a high-stress environment where critical decisions must be made in a matter of seconds. Because the FAA does not have other data supporting the proposition that children at any age younger than 15 possess the capacity to act quickly in an emergency, prescribing a rule that allows children of any specific age below 15 years to use an SRS would be arbitrary and capricious.

The FAA proposed prohibiting anyone sitting in the flightdeck from using an SRS. The FAA received three comments regarding these prohibitions. Condon & Forsyth recommended that proposed § 91.108(i)(3) be deleted in its entirety since Condon & Forsyth believed it is arbitrary, overly broad, and fails to adequately address the very narrow and specific issue of flight/engine control interference for civil aircraft/rotorcraft that utilize floor-mounted engine controls. Alternatively, Condon & Forsyth proposed § 91.108(i)(3) should be limited in scope to any aircraft/rotorcraft that utilize floor-mounted engine controls like those found in the AS350B series helicopter.

Two commenters also stated that in certain aircraft, the flightdeck (cockpit) is well separated from the PIC position, either by a console or an aftermarket supplemental type certificated separation barrier that is designed to ensure no interference with flight or other controls in the flightdeck. The commenters further noted if there are no flight controls and/or if they are locked out in the area of the flightdeck (cockpit), the SRS should be permitted to be attached to an attachment hard point in this area.

The FAA disagrees with the commenters. In the NPRM, the FAA specifically stated that the flightdeck prohibition is based on a review of past accidents and incidents where unsecured items, including those with straps and lanyards, have a history of interfering with flight and engine controls. In the Liberty Helicopters accident, a tether caught on and activated the floor-mounted engine fuel shutoff lever, resulting in the in-flight loss of engine power and subsequent ditching. Further, airworthiness standards codified at 14 CFR parts 23, 25, 27, and 29, which require that flight and engine controls not be subject to inadvertent operation, do not address circumstances when carry-on objects, tethers, or straps would inadvertently move a control. Consequently, crewmembers or passengers in the flightdeck should not be attached to or carry equipment that could snag on controls. Inadvertent activation of the fuel shutoff lever is only one type of accidental interference with flight controls that warrants concern. Additional examples are discussed in the NPRM preamble. 21 Modifications to provide separation for a specific instrument or flight control have not been shown to protect from interference with all flight instruments or controls. With an SRS, an individual in the flightdeck has a greater range of motion, allowing many more potential actions that could interfere with the controls as compared to an individual restrained only by the FAA-approved safety belt. The FAA has determined that allowing any seating of an individual occupying an SRS in the flightdeck imposes an unacceptable level of risk to the aircraft operation and the individuals on board the aircraft, and it would not prevent an accident similar to the Liberty Helicopters accident. As a result, the FAA maintains the prohibition and adopts § 91.108(i)(3) as final.

The FAA proposed to prohibit anyone occupying or using a child restraint system from also using an SRS. The FAA did not receive comments on this proposed provision. Therefore, the FAA is adopting the language as proposed.

The FAA proposed prohibiting a child who has not reached their second birthday from being held by an adult during civil aircraft operations when the adult uses an SRS or during any operation in which the doors are opened or removed. The FAA did not receive comments on this proposed provision. Therefore, the FAA is adopting the language as proposed.

The FAA proposed excluding certain operations from complying with § 91.108. First, under paragraph (k)(1), the FAA proposed excluding operations conducted under part 105 (“Parachute Operations”) or part 133 (“Rotorcraft External-Load Operations”). Second, under paragraph (k)(2), operators that are subject to the requirements of this rule, particularly paragraph (b)(1)—which requires each individual on board to be properly secured by either a safety belt/shoulder harness or an SRS—may operate an aircraft with the doors opened or removed even with flightcrew members on board who are subject to the requirements of § 91.105 (“Flight crewmembers at stations”) or § 135.171 (“Shoulder harness installation at flight crewmember stations”). Third, under paragraph (k)(3), the FAA proposed that the requirements under paragraph (b)(2), requiring an individual to be properly secured by an SRS before releasing their safety belt/shoulder harness, would not apply to flightcrew members subject to the requirements of §§ 91.105 or 135.171 to the extent they need to unfasten their shoulder harnesses in accordance with those sections.

An individual commented that consideration needs to be made for rotorcraft external load operations (part 133) where a crewmember is working with an open or removed door, i.e., essential crewmember, e.g., spotter, or winch operator for Class D or Class B human external cargo rotorcraft-load combination (RLC). The FAA intentionally excluded part 133 from this rulemaking because that part has its own unique certification and operating rules. As a result, changes to part 133 are not within the scope of this rulemaking.

Another commenter mentioned that for certain parachute operations, the rule needs to be considered for personnel working unseated and not belted into a seat or berth if the door is removed or opened. As with part 133, the FAA intentionally excluded part 105 from this rulemaking because that part has its own unique operating rules. As a result, changes to part 105 are not within the scope of this rulemaking.

The FAA makes technical amendments to paragraphs (k)(2) and (k)(3). Specifically, the FAA determined the regulatory text should state “§§ 91.105 or 135.171” instead of “§§ 91.105 and 135.171” (emphasis added). The intent of this provision is to allow an operator to conduct a flight with doors opened or removed under § 91.108(b)(1) even if there are flight crewmembers on board who are subject to either § 91.105 or § 135.171—not just those flight crewmembers who would be subject to both regulations. This grammatical change is only technical in nature and does not substantively change the previous intent of the provisions. The FAA did not make any other changes to paragraph (k). As a result of the foregoing, the FAA adopts the language in paragraphs (k)(1) through (3) as amended.

The FAA proposed under § 91.108(l) to define an SRS as any device that is not installed on the aircraft pursuant to an FAA approval, used to secure an individual inside an aircraft when that person is not properly secured by an FAA-approved safety belt and, if installed, shoulder harness, or an approved child restraint system. A supplemental restraint system consists of a harness secured around the torso of the individual using the SRS and a lanyard that connects the harness to an approved airframe attachment point inside the aircraft.

The FAA did not receive comments on this proposed provision; however, to reflect a similar change made in paragraph (e)(1)(i) in response to comments, the FAA has added “FAA-” in front of “approved airframe attachment point” to highlight the fact that an SRS can only be attached to an airframe attachment point that the FAA has determined complies with the applicable part 21 approval requirements. In addition, the FAA has moved the definition from § 91.108 to § 1.1 (“General definitions”) because “supplemental restraint system” is also referenced in parts 135 and 136. Placing the definition in § 1.1 will make it easier to find and will clarify that the definition applies to other parts that use the term, not just part 91. Therefore, the FAA is adopting the language as amended and placing it within § 1.1.

Tuckamore Aviation commented that there are many unique missions conducted by helicopters that may require waiver of this proposed rule and that the proposed regulations should not apply to all SRS being used in different operations.

The FAA disagrees. As explained in the NPRM, the FAA has determined that waivers are inappropriate in this rule. The waiver process does not allow the FAA to conduct the same level of analysis as the exemption process, which allows the FAA to analyze in more detail whether a proposed operation outlined in a petition for exemption would not adversely affect safety or provides an equivalent level of safety compared to the regulatory requirement. Moreover, the FAA did not receive comments providing information that would support allowing this rule to be waivable. As a result, the FAA will not add § 91.108 to the list of waivable regulations under § 91.905.

The FAA received a comment from an individual proposing the withdrawal of the proposed rule and not allowing individuals to move about the aircraft. The commenter instead suggested adding a new paragraph to existing § 91.107 to prohibit SRS operations.

The FAA disagrees with the commenter. Section 91.108(a) prohibits persons from conducting a civil aircraft operation with individuals on board secured with an SRS unless the other requirements of the section have been met. The FAA has determined that these requirements help mitigate the identified safety risks during operations when SRS are used. Under this rule, operations with an SRS will be conducted with an acceptable level of safety. Finally, a blanket prohibition of SRS would be overly broad, arbitrary, and capricious because the FAA has already determined through the Emergency Order of Prohibition that some aircraft operations may be safely conducted while individuals are using SRS. As a result, the FAA is finalizing § 91.108 as amended, allowing operations conducted with SRS under certain circumstances as long as the requirements in the rule are met.

Federal agencies consider the 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. The FAA has provided a detailed Regulatory Impact Analysis (RIA) in the docket for this rulemaking. This portion of the preamble summarizes the FAA's analysis of the economic impacts of this final rule.

In conducting these analyses, the FAA has determined that this rule: will result in benefits that justify costs; is not an economically “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.

The FAA estimates that for safety benefits to equal or exceed the costs of the final rule, based on a 20-year analysis, two accidents of the same severity as the Liberty Helicopters accident would need to be mitigated. The estimated safety benefit in present value, from mitigating one part 91 and one part 135 helicopter accident ( i.e., an accident in year 10 and an accident in year 20 of the analysis period) will range from $26.8 million to $40.2 million at a 7 percent discount rate, from $45.4 million to $68.0 million at a 3 percent discount rate, and from $52.2 million to $78.3 million at a 2 percent discount rate.

The cost of the rule to operators, pilots, and passengers comes from purchasing harnesses and lanyards that meet specific requirements as set forth in this rule, conducting a pre-flight safety briefing on the use of the SRS, and requiring passengers to demonstrate their ability to remove the SRS in the event of an emergency. The FAA will also incur costs for periodic surveillance of parts 91 and 135 SRS operations. The estimated present value cost to the FAA over 20 years is $1,240 at a 7 percent discount rate, $1,263 at a 3 percent discount rate, and $1,449 at a 2 percent discount rate. The estimated present value total cost to industry and the FAA for these requirements over 20 years is $22.3 million at a 7 percent discount rate, $31.7 million at a 3 percent discount rate, and $34.9 million at a 2 percent discount rate. Estimated safety benefits and costs are shown in the table below.

In 2018, in response to the Liberty Helicopters accident, the FAA issued an Emergency Order of Prohibition, which prohibited the use of supplemental passenger restraint systems (SPRS) that cannot be released quickly in an emergency in doors-off flight operations. The FAA also estimates the cost and benefit of the rule using the Emergency Order of Prohibition as the baseline. The FAA estimates that the undiscounted cost of the rule, above the Emergency Order of Prohibition, is $22.9 million ($11.8 million at 7 percent present value, $16.8 million at 3 percent present value, or $18.9 million at 2 percent present value). When annualized, at a 7 percent, 3 percent, or 2 percent discount rate, the cost is approximately $1.1 million. The costs come entirely from the demonstration by passengers of the ability to release the device. The FAA considers that a passenger demonstrating the ability to release themselves from the device adds to the efficacy of the rule above the Emergency Order of Prohibition. However, the FAA is unable to quantify the incremental safety benefits gained by the passenger demonstration.

This rule affects all flights with doors opened or removed and all operations with individuals on board who choose to use an SRS, except for operations conducted under part 105, Parachute Operations, or conducted under part 133, Rotorcraft External-Load Operations, and public aircraft operations. The FAA identified the following, from Flight Standards' Web-based Operations Safety System (June 2021), as the population that could be affected:

On December 15, 2011, Bell applied for a type certificate for a new 14 CFR part 29 transport category helicopter designated as the Model 525. Bell applied for multiple extensions to its certification application, with the most recent occurring on September 21, 2023. The helicopter is a medium twin-engine rotorcraft. The maximum takeoff weight is 20,500 pounds, with a maximum capacity of 16 passengers and a crew of 2.

Under the provisions of 14 CFR 21.17, Bell must show that the Model 525 meets the applicable provisions of part 29, as amended by Amendments 29-1 through 29-55 thereto. The Bell Model 525 certification basis date is December 31, 2019.

If the Administrator finds that the applicable airworthiness regulations ( i.e., 14 CFR part 29) do not contain adequate or appropriate safety standards for the Bell Model 525 because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates 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 Bell Model 525 helicopter must comply with the 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 § 21.17(a)(2).

The Bell Model 525 helicopter will incorporate the following novel or unusual design feature: a four-axis full authority digital FBW FCS that provides aircraft control through pilot input or coupled auto pilot modes in addition to degraded modes.

For a conventional rotorcraft having mechanical linkages from the primary cockpit flight controls to the rotor, static longitudinal stability means that a pull force on the controller ( i.e., cyclic) will result in a reduction in speed relative to the trim speed, and a push force will result in a higher speed relative to the trim speed. Longitudinal stability is required by the regulations for the following reasons:

• Airspeed change cues are provided to the pilot through increased and decreased forces on the controller.

• Short periods of unattended control of the rotorcraft do not result in significant changes in attitude, airspeed, or load factor.

• A predictable pitch response is provided to the pilot.

• An acceptable level of pilot workload, to attain and maintain trim speed and altitude, is provided to the pilot.

• Longitudinal stability provides gust stability.

The pitch control movement of the controller ( i.e., cyclic) for the FBW FCS is an attitude command, which results in a rotor movement to attain the commanded pitch attitude. The flight path commanded by the initial cyclic input will remain stick-free until the pilot gives another command. This control function is applied during normal control laws within the approved flight envelope. The relevant regulations in part 29, which are §§ 29.173(b), 29.175 for visual flight rules (VFR) operations, and Appendix B to part 29 sections IV and VII—Airworthiness Criteria for Helicopter Instrument Flight, are inadequate for the Bell 525 because the longitudinal flight control laws for the Bell 525 provide neutral and negative static stability, rather than positive static stability, within the normal operational envelope. As detailed in § 29.173(b) and considered in Advisory Circular (AC) 29.173A, “Static Longitudinal Stability” (AC 29.173A), which is contained in AC 29-2C, “Certification of Transport Category Rotorcraft” (AC 29-2C), and the positive control force stability requirements in Appendix B to part 29, sections IV and VII, the slope of the control position ( i.e., cyclic) versus airspeed curve must be positive ( i.e., provide positive static stability) throughout the full range of altitude for which certification is requested and with the throttle and collective pitch held constant.

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.

In lieu of meeting the requirements of §§ 29.173(b), 29.175 for VFR operations and the airworthiness criteria for helicopter instrument flight requirements of Appendix B to part 29, sections IV and VII, the special conditions require the rotorcraft to be shown to have suitable longitudinal stability and acceptable rotorcraft handling qualities. The suitable static longitudinal stability must be primarily based on a positive control movement, which is described as “control sense of motion” in AC 29.173A contained in AC 29-2C. Additionally, the static longitudinal stability and rotorcraft handling qualities are determined through an assessment of pilot workload, cues, and pilot compensation for specific test procedures performed during the flight test evaluation.

The language “must be primarily based on a positive control movement” reflects a pilot's perception of aircraft control where the first concern is that the control movements are primarily positive in control movement. Once that is established, the pilot must observe that the second concern of “rotorcraft handling qualities” is not degraded or mis-aligned where the anticipated flight behavior is not what the pilot is witnessing. The special conditions address the concern that these highly computer-controlled control systems can cause the pilot to become disconnected or out-of-sync with the aircraft's control. Such a situation can lead to control input errors and undesirable feedback that can in turn result in loss of control.

The FAA issued Notice of Proposed Special Conditions No. 29-24-01-SC for the Bell Model 525 helicopter, which was published in the Federal Register on May 22, 2024 (89 FR 44928). The FAA received one response from the applicant, Bell.

Bell observed that the language in proposed special conditions No. 29-24-01-SC could be interpreted as negating the entirety of section VII of appendix B to part 29, which is not the FAA's intent. Bell recommended clarifying the reference to specify section VII(a)(2)(iv) of appendix B to part 29 and adding an additional descriptive phrase in order to avoid an implied exclusion of the remaining applicable parts of section VII. The FAA concurs with Bell's request and accepts the suggested language as proposed by Bell with minor edits for appropriate presentation.

Except as discussed above, the special conditions are adopted as proposed.

As discussed above, these special conditions are applicable to the Bell Model Bell 525 helicopter. Should Bell apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.

Under standard practice, the effective date of final special conditions would be 30 days after the date of publication in the Federal Register . However, as the certification date for the Bell Model 525 is imminent, the FAA finds that good cause exists to make these special conditions effective upon publication.

This action affects only a certain novel or unusual design feature on one model of helicopter. It is not a rule of general applicability.

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 the Bell Textron Inc. (Bell) Model 525 helicopter.

In lieu of meeting the requirements of §§ 29.173(b), 29.175 for VFR operations and the airworthiness criteria for helicopter instrument flight requirements of Appendix B to part 29, sections IV and VII(a)(2)(iv), as relating to the aircraft's static longitudinal stability requirements, the Federal Aviation Administration (FAA) establishes the following special conditions as part of the type certification basis for Bell Model 525 helicopters.

The rotorcraft must be shown to have suitable longitudinal stability in any condition normally encountered in service, including the effects of atmospheric disturbance. The showing of suitable static longitudinal stability must be primarily based on a positive control movement in addition to acceptable rotorcraft handling qualities, both of which are determined by assessing pilot workload, cues, and pilot compensation for specific test procedures during the flight test evaluation.

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

The FAA published a notice of proposed rulemaking for Docket No. FAA-2024-1265 in the Federal Register (89 FR 45615; May 23, 2024), proposing to establish Class E airspace at White Sulphur Springs Airport, MT. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Subsequent to the publication of the NPRM—and prior to their planned publication date of Oct 31, 2024—the two instrument approach procedures developed for the airport were modified. As these procedures are the driving factor for the establishment of airspace within this action, the procedure modifications created a need to expand the airspace from that originally proposed. The north extension will now encompass an area approximately 6 x 16 miles in size, while the south extension now encompasses an area approximately 9 x 13 miles in size. This expanded airspace will more appropriately contain arriving IFR aircraft below 1,500 feet above the surface based on the modified procedures.

Class E5 airspace areas are published in paragraph 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11H, dated August 11, 2023, and effective September 15, 2023. FAA Order JO 7400.11H is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next update to FAA Order JO 7400.11.

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

This action amends 14 CFR part 71 by establishing Class E airspace extending upward from 700 feet above the surface at White Sulphur Springs Airport, MT.

The airport is transitioning from VFR operations to IFR operations and requires Class E airspace extending upward from 700 feet above the surface to contain departing IFR aircraft until reaching 1,200 feet above the surface and arriving IFR aircraft below 1,500 feet above the surface. The Class E airspace is centered on the airport reference point within a 5-mile radius and would include extensions to the north and south of the airport to provide additional containment for rising terrain in the vicinity.

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

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

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies the Air Traffic Service (ATS) route structure as necessary to preserve the safe and efficient flow of air traffic within the National Airspace System.

The FAA published a notice of proposed rulemaking for Docket No. FAA-2024-0485 in the Federal Register (89 FR 17763; March 12, 2024), to amend Jet Route J-183, RNAV Routes Q-4 and T-254, and VOR Federal Airways V-76, V-161, V-565, and V-568; establish RNAV Route T-499; and revoke VOR Federal Airway V-558 due to the planned decommissioning of the VOR portion of the Llano, TX, VORTAC NAVAID. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal. No comments were received.

After publishing the NPRM in the Federal Register , the FAA realized the proposed amendments to V-76 and V-558 would inadvertently remove the air traffic service provided by the conventional airways between the Centex, TX, VORTAC and the Industry, TX, VORTAC while the NAVAIDs remain operational. Since V-76 and V-558 overlap between the Centex and Industry VORTACs, the FAA decided to continue with the intended removal of the V-76 airway segment and to retain the V-558 airway segment. As such, instead of removing V-558 in its entirety as proposed in the NPRM, the FAA is removing only the portion of the airway between the Llano, TX, VORTAC and the Centex, TX, VORTAC. As amended, V-558 will continue to provide VOR Federal airway service between the Centex VORTAC and the Industry VORTAC.

Subsequent the NPRM, the FAA published a rule for Docket No. FAA-2023-2493 in the Federal Register (89 FR 51403; June 18, 2024), amending V-161 by removing the airway segment between the International Falls VOR/Distance Measuring Equipment (DME) and the Winnipeg, Manitoba (MB), Canada, VORTAC. As amended, the airway was changed to extend between the Three Rivers, TX, VORTAC and the Tulsa, OK, VORTAC, and between the Butler, MO, VORTAC and the Gopher, MN, VORTAC. That airway amendment becomes effective September 5, 2024, and is included in this rule.

Jet Routes are published in paragraph 2004, United States RNAV Routes (Q-routes) are published in paragraph 2006, VOR Federal airways are published in paragraph 6010(a), and United States RNAV Routes (T-routes) are published in paragraph 6011 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11H, dated August 11, 2023, and effective September 15, 2023. FAA Order JO 7400.11H is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next update to FAA Order JO 7400.11.

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

This action amends 14 CFR part 71 by amending Jet Route J-183, RNAV Routes Q-4 and T-254, and VOR Federal Airways V-76, V-161, V-558, V-565, and V-568; and establishing RNAV Route T-499. The FAA is taking this action due to the planned decommissioning of the VOR portion of the Llano, TX, VORTAC. The ATS route actions are described below.

J-183: J-183 extends between the El Paso, TX, VORTAC and the College Station, TX, VORTAC. The route segment between the Pecos, TX, VOR/DME and the College Station VORTAC is removed. As amended, the route is changed to now extend between the El Paso VORTAC and the Pecos VOR/DME.

Q-4: Q-4 extends between the BOILE, CA, Fix and the El Paso, TX, VORTAC. The route is extended eastward from the El Paso VORTAC to the College Station, TX, VORTAC to mitigate the removal of the J-183 route segment addressed above. In addition, the ZEBOL, AZ, Waypoint (WP) is removed from the route description because it does not denote a turn point of one degree or more and there is no published holding at the WP. Lastly, minor editorial corrections are made to the route description to list the state in which each route point is located, spell out the names of the navigational aids, and update the geographic coordinates of each route point to be expressed in degrees, minutes, seconds, and hundredths of a second. As amended, the route is changed to now extend between the BOILE Fix and the College Station VORTAC.

V-76: V-76 extends between the Lubbock, TX, VORTAC and the Industry, TX, VORTAC. The airway segment between the San Angelo, TX, VORTAC and the Industry VORTAC is removed. As amended, the airway is changed to now extend between the Lubbock VORTAC and the San Angelo VORTAC.

V-161: V-161 extends between the Three Rivers, TX, VORTAC and the Tulsa, OK, VORTAC; and between the Butler, MO, VORTAC and the Gopher, MN, VORTAC. The airway segment between the Center Point, TX, VORTAC and the Millsap, TX, VORTAC is removed. As amended, the airway is changed to now extend between the Three Rivers VORTAC and the Center Point VORTAC, between the Millsap VORTAC and the Tulsa VORTAC, and between the Butler VORTAC and the Gopher VORTAC.

V-558: V-558 extends between the Llano, TX, VORTAC and the Industry, TX, VORTAC. The airway segment between the Llano VORTAC and the Centex, TX, VORTAC is removed. As amended, the airway is changed to now extend between the Centex VORTAC and the Industry VORTAC.

V-565: V-565 extends between the Llano, TX, VORTAC and the Lufkin, TX, VORTAC. The airway segment between the Llano VORTAC and the Centex, TX, VORTAC is removed. As amended, the airway is changed to now extend between the Centex VORTAC and the Lufkin VORTAC.

V-568: V-568 extends between the Corpus Christi, TX, VORTAC and the Llano, TX, VORTAC; and between the Millsap, TX, VORTAC and the Wichita Falls, TX, VORTAC. The airway segment between the Stonewall, TX, VORTAC and the Llano VORTAC is removed. As amended, the airway is changed to now extend between the Corpus Christi VORTAC and the Stonewall VORTAC, and between the Millsap VORTAC and the Wichita Falls VORTAC.

T-254: T-254 extends between the College Station, TX, VORTAC and the Lake Charles, LA, VORTAC. The route is extended westward from the College Station VORTAC to the San Angelo, TX, VORTAC to mitigate a portion of the V-76 airway segment removed between the San Angelo VORTAC and the Llano, TX, VORTAC. The route extension includes the DILLO, TX, WP; the KALLA, TX, Fix; and the DOWWD, TX, WP. Additionally, the Lake Charles VORTAC route point is replaced with the KNZLY, LA, WP in the immediate vicinity of the Lake Charles VORTAC. Lastly, minor editorial corrections are made to the route description to update the geographic coordinates of each route point to be expressed in degrees, minutes, seconds, and hundredths of a second. As amended, T-254 now extends between the San Angelo VORTAC and the KNZLY WP.

T-499: T-499 is a new RNAV route established between the Corpus Christi, TX, VORTAC and the DILLO, TX, WP. This new T-route provides RNAV routing between the Corpus Christi, TX, area and the Llano, TX, area to mitigate the removal of the V-568 airway segment addressed above. The full T-499 route description is listed in the regulatory text of this rule.

All NAVAID radials listed in the VOR Federal airway descriptions in the regulatory text of this rule are unchanged and stated in degrees True north.

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

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act (42 U.S.C. 4321 et seq. ) and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points); and paragraph 5-6.5i, which categorically excludes from further environmental impact review the establishment of new or revised air traffic control procedures conducted at 3,000 feet or more above ground level (AGL); procedures conducted below 3,000 feet AGL that do not cause traffic to be routinely routed over noise sensitive areas; modifications to currently approved procedures conducted below 3,000 feet AGL that do not significantly increase noise over noise sensitive areas; and increases in minimum altitudes and landing minima. As such, this action is not expected to result in any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. The FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.

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

FDA is amending the food additive regulation at 21 CFR 573.450 Fermented ammoniated condensed whey for use in animal feed to update the production organism Lactobacillus bulgaricus that has been scientifically reclassified to Lactobacillus delbrueckii. This action is being taken to improve the accuracy and clarity of the regulations.

Publication of this document constitutes final action under the Administrative Procedure Act (5 U.S.C. 553). FDA has determined that notice and public comment are unnecessary because this amendment to the regulations provides only technical changes to update scientific nomenclature and is nonsubstantive.

Therefore, under the Federal Food, Drug, and Cosmetic Act, and the Public Health Service Act, and under the authority delegated to the Commissioner of Food and Drugs, 21 CFR part 573 is amended as follows:

The Department of State (“Department”) is amending its regulations at 22 CFR 40.21(a)(5), and 22 CFR 40.22(c) regarding the effect of a pardon on a visa applicant's ineligibility under section 212(a)(2)(A) of the Immigration and Nationality Act (INA) (8 U.S.C. 1182(a)(2)(A)) and INA section 212(a)(2)(B) (8 U.S.C. 1182(a)(2)(B)), respectively. The current regulation at 22 CFR 40.21(a)(5) provides that an alien is not ineligible for a visa under INA section 212(a)(2)(A) if a full and unconditional pardon has been granted by the President of the United States, by a governor of a state of the United States, or by certain other specified officials. Similarly, the current regulation at 22 CFR 40.22(c) provides that an alien is not ineligible for a visa under INA section 212(a)(2)(B) based on having been convicted of two or more offenses, if a full and unconditional pardon has been granted by the President of the United States, by a governor of a state of the United States, or by certain other specified officials. The Seventh Circuit Court of Appeals recently examined the regulation at 22 CFR 40.21(a)(5), finding that it conflicts with INA's provisions in section 212(a)(2)(A)(i) governing inadmissibility based on conviction or admission of certain crimes, which do not include an exception or waiver to that inadmissibility for applicants who receive a pardon.

Wojciechowicz v. Garland, 77 F.4th 511, 514, 518 (7th Cir. 2023) (internal citations and parentheticals omitted). The Department agrees with the Seventh Circuit's opinion in Wojciechowicz as it applies to gubernatorial pardons and finds that the court's analysis regarding the lack of underlying authority in the INA giving effect to such pardons also extends to the Department's regulation at 22 CFR 40.22(c) regarding ineligibility for multiple criminal convictions.

The Department first promulgated these rules in 1959 at 22 CFR 41.91(a)(9)-(10). 1 At the time the regulations were first promulgated, the Immigration and Nationality Act of 1952, as amended (“1952 Act”), provided that noncitizens were excludable  2 from the United States and ineligible for visas if they had been convicted of a crime involving moral turpitude or two or more criminal offenses. Unlike the 1952 Act's provisions on grounds of deportation, which did provide that the criminal-related ground of deportation “shall not apply” to individuals who had received a full and unconditional pardon by the President of the United States or by the Governor of any of the several States, the 1952 Act did not include a provision on the effect of a pardon on excludability. Section 222(a) of the 1952 Act did, however, speak to the possible relevance of a previous pardon or amnesty to an individual's eligibility for an immigrant visa, requiring that all immigrant visa applicants provide such information among a range of other specified fields.

While the 1952 Act did not expressly include a provision on the effect of a pardon on excludability, the Board of Immigration Appeals (BIA) held in 1954 that such pardons also remove excludability under now-INA section 212(a)(2)(A)(i). Matter of H—, 6 I&N Dec. 90, 96 (BIA 1954) (“As long as there is a full and unconditional pardon granted by the President or by a Governor of a State covering the crime which forms the ground of deportability, whether in exclusion or expulsion, the immunizing feature of the pardon clause applies . . .”) (emphasis added).

Following promulgation of the Department's 1959 rule, amendments to the Immigration and Nationality Act and multiple court decisions have removed any ambiguity about whether there is a statutory basis to except individuals from inadmissibility under INA section 212(a)(2)(A)(i) or INA section 212(a)(2)(B) based on a gubernatorial pardon. Congress revised the grounds of deportation relating to convictions of crimes involving moral turpitude and aggravated felonies under section 602(a) of the Immigration Act of 1990 (“IMMACT 90”) and, among the revisions, added a new clause to that ground expressly authorizing waivers of that ground in cases of certain pardons, including gubernatorial pardons. In the same Act, Congress similarly revised the INA's ground of inadmissibility in INA section 212(a)(2)(A)(i) for conviction of certain crimes to include a separate clause of exceptions to that ground and did not include any such language excepting applicants from ineligibility if their relevant conviction had been pardoned. Congress also subsequently amended INA section 222(a) to no longer expressly require that all immigrant visa applicants provide information on a previous pardon or amnesty. 3

In more recent years, courts have also consistently reached the opposite conclusion of Matter of H— regarding the effect of a pardon on a conviction that leads to criminal-related inadmissibility, like the court's findings in Wojciechowicz. Each court that has considered the effect of a gubernatorial pardon on admissibility has uniformly found that Congress did not include an exception to inadmissibility under INA section 212(a)(2)(A)(i) based on having received a pardon as it had done in the corresponding section outlining the criminal grounds for deportation. For example, in Balogun vs. U.S. Attorney General, a case involving a gubernatorial pardon, the Eleventh Circuit held that because the criminal-related inadmissibility ground “does not have a pardon provision like [8 U.S.C.] section 1227 does,” the logical conclusion was that Congress must not have “intended to extend the pardon waiver to inadmissible aliens.” Balogun v. U.S. Atty. Gen., 425 F.3d 1356, 1362 (11th Cir. 2005). The Ninth Circuit subsequently reached the same conclusion in another case involving a gubernatorial pardon, with the court finding that the “statutory language dealing with pardons applies only to aliens who are charged based upon convictions under [8 U.S.C. 1227] . . . It does not apply to aliens charged with inadmissibility under [8 U.S.C. 1182(a)].” Aguilero-Montero v. Mukasey, 548 F.3d 1248, 1250 (9th Cir. 2008).

Consistent with these courts' uniform findings on the issue, the BIA has also consistently reached the opposite conclusion of Matter of H—, and specifically held that the statutory language on effects of pardons applies only to the criminal-related grounds of deportation and not inadmissibility. 4 See, e.g., Matter of Suh, 23 I&N Dec. 626, 628 (BIA 2003); Matter of Dillingham, 21 I&N Dec. 1001 (BIA 1997).

While the Department agrees with the uniform findings from the courts and the BIA that the text and structure of the INA do not provide a basis for a pardon waiver of inadmissibility under INA section 212(a)(2)(A)-(B), these cases do not address the constitutional authority of the President to pardon an offense against the United States, and the effect of such pardons on a criminal-related inadmissibility. Irrespective of express statutory authority to waive the effects of a criminal conviction, a pardon granted by the President of the United States removes the attachment of all consequences based on the offense. See U.S. Const. art. II, § 2; Effects of a Presidential Pardon, 19 Op. O.L.C. 160 (1995) (quoting Ex Parte Garland, 71 U.S. (4 Wall.) 333, 380 (1866)). Consequently, this rule retains language in both regulations regarding the effect on ineligibility under INA section 212(a)(2)(A)-(B) by reason of a conviction for which the President of the United States has granted a full and unconditional pardon.

This rulemaking also removes references to the effect of a pardon granted by either the former High Commissioner for Germany acting pursuant to Executive Order 10062 or the U.S. Ambassador to the Federal Republic of Germany acting pursuant to Executive Order 10608. These executive orders were issued in 1949 and 1955, respectively, and pertained to the functions and authorities of the United States in Germany following World War II. Actions undertaken pursuant to these executive orders are now generally obsolete given the time that has passed since the United States occupied Germany. As these provisions pertain to adjudication of visa applications from individuals granted pardons under these executive orders, the provisions are now obsolete and are being removed in the interest of keeping Department regulations clear and up to date.

The Department is publishing this notice as an interpretative rule which, under the Administrative Procedure Act (APA), is not subject to the general requirement for public notice and comment or the requirement for a 30-day delayed effective date. 5 U.S.C. 553(b)-(c), (d)(2). “[T]he critical feature of interpretive rules is that they are issued by an agency to advise the public of the agency's construction of the statutes and rules which it administers.” Perez v. Mortgage Bankers Ass'n, 575 U.S. 92, 97 (2015) (quoting Shalala v. Guernsey Mem'l Hosp., 514 U.S. 87, 99 (1995)). As explained above, this rule amends the existing regulation to implement the plain meaning of statutory authorities and the President's constitutional authority regarding the effect of pardons on inadmissibility under INA sections 212(a)(2)(A)(i) and 212(a)(2)(B). Any rule that is “based on an agency's power to exercise its judgment as to how best to implement a general statutory mandate” is likely legislative. See United Tech. Corp. v. EPA, 821 F.2d 714, 720 (D.C. Cir. 1987). This rule, however, conveys the Department's interpretation of Congress having expressly not provided an exception to inadmissibility based on a pardon, reflecting a plain reading of the inadmissibility ground in INA section 212(a)(2)(A)(i) that multiple courts have shared; therefore, because it is not based in any exercise of the Department's judgment or discretion regarding these authorities, it is an interpretative rule.

Moreover, whether a rule is legislative or interpretative is assessed by reviewing a range of factors related to: (1) whether the agency would not have an adequate basis to perform duties in the absence of the rule; (2) whether the agency has published the rule in the Code of Federal Regulations; (3) whether the agency has explicitly invoked a legislative authority; or (4) whether the rule effectively amends a prior legislative rule. Am. Mining Cong. v. Mine Safety Health Admin., 995 F.2d 1106, 1112 (D.C. Cir. 1993). If any of the answers to these questions are affirmative, then the rule is considered legislative and not interpretative. Id.

None of the factors in American Mining apply to this rule. First, even absent this rulemaking, the lack of any ambiguity regarding the effect of a gubernatorial pardon on a conviction of a crime involving moral turpitude makes clear that the Department lacks authority to except applicants from ineligibility under INA section 212(a)(2)(A)-(B), regardless of this rule. Second, while this rule will result in an amended regulation that is published in the Code of Federal Regulations, the changes are not based in legislative authority, which the court in American Mining explained is the purpose of assessing publication there. See id. at 1109 (“[A]n agency seems likely to have intended a rule to be legislative if it has the rule published in the Code of Federal Regulations[.]”). Third, the Department is not invoking its general legislative authority to support or justify this rule, as it is merely restating existing statutory and Constitutional authority with respect to the effect of pardons. Id. at 1110; Fertilizer Institute v. EPA, 935 F.2d 1303, 1308 (D.C. Cir. 1991). Finally, this rule does not amend a prior legislative rule, as a rule does not become an amendment of a prior legislative rule merely because it clarifies an authority being interpreted. See Id. at 1112 (“If that were so, no rule could pass as an interpretation of a legislative rule unless it were confined to parroting the rule or replacing the original vagueness with a rule.”). The existing rule appears based on implementation of a 1954 BIA decision for which courts have consistently reached the opposite conclusion regarding authority in the INA to give effect to a pardon on a conviction of a crime involving moral turpitude. See Matter of H— at 96. Consequently, the prior rule appears to have also been interpretative and not legislative.

As this rule amends visa policy, which is a foreign affairs function of the United States, it is also exempt from both the notice and comment and delayed effective date requirements of 5 U.S.C. 553 per subsection (a)(1).

As this rulemaking is not required to be published for notice and comment under 5 U.S.C. 553, it is exempt from the regulatory flexibility analysis requirements set forth by the Regulatory Flexibility Act. Nonetheless, as this rule only directly impacts visa applicants, the Department certifies that this rule will not have a significant economic impact on a substantial number of small entities.

This rule is not a major rule as defined by the Congressional Review Act (5 U.S.C. 801 et seq. ). This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and import markets.

Executive Orders (E.O.) 12866, 13563, and 14094 do not apply to this rule, as it pertains to a foreign affairs function. 5 Notwithstanding the above, the Department has submitted this rule to OIRA for review and OIRA has deemed this rule not to be a significant regulatory action. For the reasons stated above, as this rule affects only visa applicants, the Department is confident this rule will not result in significant impacts to U.S. persons, including U.S. citizens or lawful permanent residents.

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

This rule does not impose any new reporting or record-keeping requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.

The Department has also considered this rule under the Unfunded Mandates Reform Act of 1995 and Executive Orders 12372, 13132, and 13272 and affirms this rule is consistent with the applicable mandates or guidance therein.

Accordingly, for the reasons set forth in the preamble, 22 CFR 40 is amended as follows:

The final regulations (TD 9993) subject to these corrections are issued under section 6418 of the Internal Revenue Code.

Accordingly, FR Doc. 2024-08926 (TD 9993), appearing on page 34770 in the Federal Register of Tuesday, April 30, 2024, is corrected as follows:

1. On page 34772, in the first column, in the fourth line from the top of the first partial paragraph, the language “apples” is corrected to read “applies”.

2. On page 34774, in the first column, the seventeenth line from the top of the second full paragraph, is corrected to read “the IRS confirm that the proposed”.

3. On page 34781, in the first column, the fourth line from the top of the second partial paragraph, is corrected to read “that referred to the “average transfer”.

4. On page 34793, in the third column, the second line from the top of the second full paragraph, is corrected to read “defined an excessive credit transfer”.

5. On page 34798, in the second column, in the second line from the bottom of the third full paragraph, the language “credit” is corrected to read “credits”.

6. On page 34799, in the third column, the first line of the first full paragraph is corrected to read, “The Treasury Department and the IRS solicited”.

Accordingly, 26 CFR part 1 is corrected by making the following correcting amendments:

Electronic Availability

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

On June 26, 2024, OFAC issued GL 55B to authorize certain transactions otherwise prohibited by the Russian Harmful Foreign Activities Sanctions Regulations, 31 CFR part 587 (the “Regulations”). GL 55B has an expiration date of June 28, 2025. On July 10, 2024, OFAC issued GL 13J, also authorizing transactions otherwise prohibited by the Regulations. Each GL was made available on OFAC's website ( www.treas.gov/ofac ) when it was issued. The text of these GLs is provided below.

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

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because immediate action is needed to respond to Grosse Tete bridge allision and associated ferry operations. It is impracticable to publish an NPRM because we must establish this safety zone on August 9th, 2024.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be impracticable because immediate action is needed to mitigate potential safety hazards associated with the bridge closure and passenger ferry operations.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The COTP New Orleans has determined a safety zone is needed for the safety of passenger ferry operations at the Grosse Tete bridge on the Port Allen Route MM 46, Iberville, LA. The safety zone is needed to protect and facilitate local school students during morning and afternoon commutes across the Port Allen Route via passenger ferry on Monday through Friday at 6 a.m. to 8 a.m. and 2:30 p.m. to 4:30 p.m. except on Federal holidays.

This rule establishes a temporary safety zone for all navigable waters within a 300 yard radius of the Grosse Tete passenger ferry at MM 46 of the Port Allen Route, Iberville, LA. The zone will be effective Monday through Friday from 6 a.m. to 8 a.m. and 2:30 p.m. to 4:30 p.m. except on Federal holidays. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

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

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

This regulatory action determination is based on the size, location, duration, and scope of the safety zone. The safety zone is limited in size and duration as it covers a 300 yard radius of the Grosse Tete passenger ferry at MM 46 of the Port Allen Route, Iberville, LA. The zone will be effective Monday through Friday from 6 a.m. to 8 a.m. and 2:30 p.m. to 4:30 p.m. except on Federal holidays. The Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969(42 U.S.C. 4321-4370f), and have determined this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone that will prohibit entry within a 300 yard radius of the Grosse Tete passenger ferry at MM 46 of the Port Allen Route, Iberville, LA. The zone will be effective Monday through Friday from 6 a.m. to 8 a.m. and 2:30 p.m. to 4:30 p.m. except on Federal Holidays. This type of action is categorically excluded from further review under paragraph L60(c) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1.

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

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

Factual Background: On February 21, 2024, a cybersecurity incident impacted Change Healthcare (CHC). CHC serves as a clearinghouse for a number of claims for payment related to ambulance transportation and health care services under a contract with VA. This incident prevented providers and entities from submitting claims electronically to VA. As of May 8, 2024, VA is able to receive all claims electronically. Between February 21, 2024, and May 8, 2024, VA had limited or no ability to receive and process claims because of this incident. During this period of more than 70 days, providers and entities were unable to, or were limited in their ability to, submit claims to VA for services for which VA would normally have processed payment that were provided either before or during this period.

Legal Background: Entities seeking payment from VA for ambulance transportation and health care services are required to comply with timely filing requirements established by several different provisions of law and regulation.

Section 1703D(b) of title 38, United States Code (U.S.C.), requires health care entities or providers that furnish hospital care, medical services, or extended care services under chapter 17, title 38, U.S.C., to submit to VA claims for payment for furnishing such services not later than 180 days after the date on which the entity or provider furnished the services.

Section 17.126 requires claimants to file a claim for reimbursement for emergency services for service-connected care within 2 years of the date the care or services were rendered, or, in the case of care or services rendered prior to VA adjudication allowing service-connection, within two years of the date the veteran was notified by VA of the allowance of the award of service connection.

Section 17.1004(d) of title 38, Code of Federal Regulations (CFR), requires claimants to file a claim for reimbursement for emergency services for non-service-connected care within 90 days of the latest of the date the veteran was discharged from the facility that furnished emergency treatment; the date of death (but only if death occurred during transportation to a facility for emergency treatment or if the death occurred during the stay in the facility that included the provision of emergency treatment); or the date the veteran finally exhausted, without success, action to obtain payment or reimbursement for the treatment from a third-party.

Sections 17.1225 and 17.1230 of title 38, CFR, require providers of emergent suicide care and emergency transportation for emergent suicide care, respectively, to submit to VA a standard billing form and other information as required no later than 180 calendar days from the date the services or transportation was furnished.

Section 70.20(b) of title 38, CFR, requires claimants to apply for payment of beneficiary travel within 30 calendar days after completing beneficiary travel that does not include a special mode of transportation. For travel that includes a special mode of transportation (including ambulances), claimants must apply for payment of beneficiary travel and obtain approval from VA prior to the travel; if prior approval has not been granted, claimants must apply for payment within 30 calendar days after the travel is completed. VA may pay for transportation for emergency treatment under separate authorities as well.

Section 17.276 of title 38, CFR, requires claims under the Civilian Health and Medical Program of VA (CHAMPVA) program to be filed not later than one year after the date of service or the date of discharge (for inpatient care), or within 180 days following beneficiary notification of authorization in the case of retroactive approval for medical services or supplies, generally. Requests for extensions must be submitted in writing, and VA may grant exceptions if it determines there was good cause for missing the filing deadline.

Section 17.903 of title 38, CFR, requires claims for the Children of Women Vietnam Veterans and the Spina Bifida program to be filed not later than one year after the date of service or the date of discharge (for inpatient care), or within 180 days following beneficiary notification of authorization in the case of retroactive approval for medical services or supplies, generally.

Other claims, including those for medical care provided through reimbursement agreements with the Indian Health Service, Tribal health programs, and Urban Indian Organizations under 25 U.S.C. 1645 and 38 U.S.C. 8153, are subject to timely filing requirements and were also affected by the CHC outage. Timely filing under these reimbursement agreements generally requires claims submission within one year of the date of service.

Legal Issue: The plain text of these statutes and regulations, with the exception of 17.276, does not include exceptions for established timely filing requirements. If VA applied these statutes and regulations without exception, it would be forced to deny claims affected by the CHC outage as not timely filed and thus not payable. This would expose veterans to personal liability in some cases for these services through no fault of their own. It also would result in inequitable outcomes, where entities and providers furnished services on behalf of VA but were unable to be paid for reasons beyond either VA's or their control.

Legal Interpretation: In light of this issue, VA is publicly stating its interpretation of these statutes and regulations that affected providers and entities are not subject to the timely filing requirements established by the statutes and regulations described in this document, subject to the terms and conditions articulated in this document.

VA's legal basis for this position is its interpretation of these statutes and regulations in light of the common law. The Supreme Court has noted that, “where a common law principle is well established . . . the courts may take it as given that Congress has legislated with an expectation that the principle will apply except `when a statutory purpose to the contrary is evident'.” See Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 108 (1991).

The common law principle of force majeure refers to situations that free parties from obligations if an extraordinary event directly preventing one or both parties from performing occurs. Impossibility is another provision in common law that generally provides relief from requirements under similar conditions and would apply here as well. Under the doctrines of both force majeure and impossibility, the event precipitating that state must have been unanticipated and beyond the control of the parties. VA has determined the CHC outage satisfies these requirements.

The concepts of force majeure and impossibility originated in the common law and still apply today. VA finds no evidence that in section 1703D(b), for example, Congress intended a statutory purpose inconsistent with the application of these common law principles. The purpose of section 1703D broadly was to ensure prompt payment of entities or providers furnishing care and services on VA's behalf. Congress stated clearly that “VA's ability to timely and accurately process payments to community providers is critical to the [Community Care] Program's success and to ensuring access to community care for the increasing number of veterans who rely on it.” H. Rpt. 115-671, Part 1, May 11, 2018, p. 7. Interpreting provisions in this statute to deny the timely and accurate payment of entities or providers when submission delays were not the fault of VA or the entities or providers would be plainly contrary to this intent and would damage the credibility and reliability of the Veterans Community Care Program and VA benefits more broadly.

VA similarly interprets its regulations regarding timely filing by applying the same canon of statutory interpretation described above. The Supreme Court has held that the canons of statutory interpretation should be applied to Federal regulations as well. See, e.g. Kisor v. Wilkie, 588 U.S. __ (2019) (“And before concluding that a rule is genuinely ambiguous, a court must exhaust all the `traditional tools' of construction.”)

VA has contracts or agreements for much of the care and services that are furnished on its behalf, and these contracts or agreements generally include well-established exceptions for situations of force majeure or impossibility. Where applicable, VA is exercising its contractual flexibility, but where not, VA's interpretation here should provide appropriate relief to entities or providers affected by the CHC outage.

In determining that force majeure and impossibility precluded the timely submission of claims, we similarly interpret that VA is relieved of obligations it may have otherwise incurred, as the common law relieved both parties of their obligations. In general, if VA fails to pay a valid, submitted claim, it owes interest for late payment. However, because VA was unable to accept claims, no late payment period could begin that would result in interest liability. Consequently, VA will not pay interest on any claims a provider attempted to submit to VA during the outage described above. However, if VA fails to pay claims submitted now, it will be liable for interest payments under relevant provisions of law.

The vast majority of provisions in law and regulation concerning VA health care benefits do not affect or implicate common law principles, but the timely filing requirements do. Consequently, VA's interpretation here that common law principles apply are limited to the statutes and regulations identified in this document.

Requirements for Timely Filing: Impacted entities or providers seeking payment may submit impacted claims for payment by October 31, 2024. Impacted claims covered by this document that are received after October 31, 2024, will not be considered timely filed and will be denied. This will provide Impacted entities or providers approximately 60 days' notice from publication of this document to file claims, which VA believes to be a sufficient period of time for claims submission in this situation.

For purposes of this document, “impacted entities and providers” are those who submit medical (including transportation) or dental claims directly to VA for payment. “Impacted claims” are claims from impacted entities and providers that would be considered not timely filed based on the dates of service and the dates of the claim submission. Impacted entities and providers may submit impacted medical, (including transportation) claims, to electronic data interchange (EDI) payor ID 12115 for services provided to veterans, dental claims to EDI payor ID 12116 for services provided to veterans, medical claims to EDI payor ID 84146 for services provided to family members of veterans, and dental claims to EDI payor ID 84147 for services provided to family members of veterans. Transportation claims that are not submitted to payor ID 12115 are not applicable to this document and should continue to be submitted according to normal procedures and requirements. Medical claims whose timely filing period expired between February 21, 2024, and March 23, 2024, for payor IDs 12115 and 84146, and dental claims whose timely filing period expired between February 21, 2024, and May 8, 2024, for payor IDs 12116 and 84147, will be considered timely filed if such claims are submitted to VA by October 31, 2024.

Claims must be submitted to VA as they normally would be ( e.g., location, content, etc.) in accordance with standard submission protocols.

Impacted claims may include: claims for non-emergent medical care furnished to veterans with a date of service between February 21, 2023, and March 23, 2024; claims for dental care furnished to veterans with a date of service between February 21, 2023, and May 8, 2024; claims for emergency care furnished to veterans with a date of service between February 21, 2022, and March 23, 2024; claims for transportation furnished to veterans with a date of service between February 21, 2022, and March 23, 2024; claims for medical care furnished to eligible family members under the Civilian Health and Medical Program of VA (CHAMPVA), Spina Bifida Health Care Benefits Program (SBHCBP) or Children of Women Vietnam Veterans (CWVV) Health Care Benefits Program with a date of service between February 21, 2023, and March 23, 2024; and claims for dental care furnished to eligible family members under CHAMPVA, SBHCBP or CWVV with a date of service between February 21, 2023, and May 8, 2024.

The dates of service identified above reflect the earliest and latest possible qualifying dates. The general descriptions above reflect various legal authorities, each of which may include additional requirements regarding timely filing, and VA will apply additional requirements as needed. For example, VA can reimburse claims for emergency care furnished to veterans under several different statutory authorities, including 38 U.S.C. 1703, 1720J, 1725, and 1728. VA's regulations provide for different timely filing requirements under these authorities. Section 1728 and its implementing regulations require eligible entities or providers to submit a claim within two years of the date of service. Given the outage for medical claims between February 21, 2024, and March 23, 2024, for such claims, a provider could have attempted to submit a claim on February 21, 2024, for emergency care furnished to a veteran on February 21, 2022, and that claim could have been considered timely and potentially approved by VA (if other conditions were met). However, under section 1725 and its implementing regulations (specifically, 17.1004, as described above), claims must be submitted to VA within 90 days of the later of any of several dates or events. If VA determined that a claim for services furnished on February 21, 2022, that is submitted based on this document is not payable under section 1728 but only payable under section 1725, that claim would be considered not timely filed. VA does not expect providers to know under what authority they are filing claims; VA will process received claims, as it does today, to determine which authority is appropriate. If providers believe VA has denied a claim incorrectly, they are free to appeal that decision, as they can today.

Denis McDonough, Secretary of Veterans Affairs, approved and signed this document on August 15, 2024, and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs.

I. Background

Executive Order (E.O.) 13988, Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation, dated January 20, 2021, establishes a policy “to prevent and combat discrimination on the basis of gender identity or sexual orientation, and to fully enforce Title VII and other laws that prohibit discrimination on the basis of gender identity or sexual orientation.” The Federal Government must be a model for diversity, equity, inclusion, and accessibility, where all employees are treated with dignity and respect. Therefore, GSA has undertaken a review of FMR parts 102-5 and 102-33 through 102-42.

Consistent with the American Psychological Association (APA) Style Guide, 7th Edition, Publication Manual Section 5.5 guidance on “Gender and Pronoun Usage”, GSA is replacing gender-specific pronouns, such as he, she, his, or her, with more inclusive and respectful terminology to all segments of society. Other terms that do not use gender-specific language, such as Administrator, Architect, employee, and purchaser, have also been used as appropriate.

This final rule is technical in nature and does not significantly change any definition, operation, or interpretation of the FMR.

There is no expected cost impact to the public due to these technical changes to the FMR.

Executive Order (E.O.) 12866 (Regulatory Planning and Review) directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. E.O. 14094 (Modernizing Regulatory Review) amends Section 3(f) of E.O. 12866 and supplements and reaffirms the principles, structures, and definitions governing contemporary regulatory review established in E.O. 12866 and E.O. 13563. The Office of Management and Budget's Office of Information and Regulatory Affairs (OIRA) has determined that this rule is not a significant regulatory action, and therefore, it was not reviewed under Section 6(b) of E.O. 12866.

OIRA has determined that this rule is not a “major rule” under 5 U.S.C. 804(2). Title II, Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (codified at 5 U.S.C. 801-808), also known as the Congressional Review Act or CRA, generally provides that before a rule may take effect, unless excepted, 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. This rule is excepted from CRA reporting requirements prescribed under 5 U.S.C. 801 as it relates to agency management or personnel under 5 U.S.C. 804(3)(B).

This final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. This final rule is also excepted from the Administrative Procedure Act pursuant to 5 U.S.C. 553(a)(2) because it applies to agency management or personnel. Therefore, an Initial Regulatory Flexibility Analysis was not performed.

The Paperwork Reduction Act does not apply because the changes to the FMR do not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors, or members of the public that require the approval of the Office of Management and Budget (OMB) under 44 U.S.C. 3501, et seq.

For the reasons set forth in the preamble, GSA amends 41 CFR parts 102-5, 102-36, 102-38, 102-39, 102-40, 102-41, and 102-42 as set forth below:

Table of Contents I. Background II. Petition for Rulemaking III. NHTSA's Analysis and Decision A. The Petitioner Fails To Present Evidence of an Unmet Motor Vehicle Safety Need B. The Petitioner Fails To Demonstrate That a Standardized Winter-Specification Windshield Washer Fluid Would Effectively Address an Unmet Motor Vehicle Safety Need IV. Conclusion I. Background

Under the National Traffic and Motor Vehicle Safety Act (the Safety Act), 49 U.S.C. Chapter 301, as amended, the National Highway Traffic Safety Administration (NHTSA) has the authority to issue Federal Motor Vehicle Safety Standards (FMVSS) for new motor vehicles and motor vehicle equipment. Each FMVSS must be practicable, meet the need for motor vehicle safety, and be stated in objective terms.

Petitions for rulemaking are governed by 49 CFR part 552. Pursuant to section 552.6, the agency conducts a technical review of the petition, which may consist of an analysis of the material submitted together with information already in possession of the agency. In deciding whether to grant or deny a petition, the agency considers this technical review as well as appropriate factors, which include, among others, allocation of agency resources and agency priorities. 1

The petitioner, Mr. Stevan Panin, submitted a letter and rulemaking petition dated February 12, 2019, regarding 49 CFR 571.104, “Windshield wiping and washing systems,” expressing concern that the use of summer and non-standardized winter-specification windshield washer fluid during colder temperatures causes vehicular injuries and fatalities because of reduced or zero visibility. The petitioner explained that summer-specification windshield washer fluid, if left in a vehicle during colder temperatures, freezes at around 32 degrees Fahrenheit, leading to frozen fluid smeared on windshields and reduced or eliminated visibility. The petitioner also stated that summer-specification windshield washer fluid may freeze the windshield washer system in colder temperatures (including the lines, pump, and reservoir), resulting in a potentially damaged windshield washer system, smeared road grime across the windshield, and reduced or no visibility due to the wipers actuating with no spraying washer fluid. Finally, the petitioner stated that there have been manufacturing problems at winter-specification fluid production plants, resulting in winter-specification windshield washer fluid that does not meet the manufacturer's internal requirements and freezes at much higher temperatures than specified.

To address these concerns the petitioner requested that NHTSA eliminate summer-specification windshield washer fluid and mandate the use of standardized winter-specification windshield washer fluid throughout the entire year by modifying FMVSS No. 104 or creating a new FMVSS. The petitioner stated that standardized winter-specification windshield washer fluid should be designed with a low enough freezing point to function properly in the coldest winter temperatures encountered in the U.S., down to minus 40 degrees Fahrenheit, to eliminate the issue of reduced or zero visibility caused by frozen washer fluid on the windshield and/or the freezing of the entire windshield washer system.

Finally, the petitioner suggested that ethanol should be used as a windshield washer fluid additive in lieu of methanol to lower the freezing point for winter use and to address the potential hazards associated with the current use of methanol in windshield washer solvents. The petitioner explained that unlike methanol, a poisonous substance with potentially severe health consequences if ingested or inhaled, ethanol is not poisonous if ingested, does not cause blindness, and poses reduced harm when inhaled as vapor. Additionally, the petitioner suggested that ethanol may offer cost-effectiveness compared to methanol.

After thorough review of the petition requesting implementation of a revised or new FMVSS mandating the year-round use of winter washer fluid, NHTSA is denying the petition based on the lack of sufficient data necessary to proceed under the Motor Vehicle Safety Act. The following reasons detail the rationale for the agency's decision.

The Safety Act requires that prescribed motor vehicle safety standards meet a motor vehicle safety need. 2 According to the petitioner, there is an unmet safety need for vehicles that use summer-specification windshield washer fluid during cold temperatures and for vehicles that use winter-specification windshield washer fluid that does not meet temperature freezing requirements. However, the petitioner fails to provide any evidence to quantify the extent and scale of the alleged safety issue, such as the nature, cause, size, and potential severity of the alleged hazard. Instead, after asserting that the use of summer-specification and non-compliant winter-specification windshield washer fluid causes increased injuries and fatalities, the petitioner provides only anecdotal information about such incidents, with no data demonstrating their frequency or severity.

Additionally, although the petitioner raises concerns that colder temperatures may cause windshield washer fluid to freeze on the windshield or within the windshield washer system, the petitioner does not acknowledge FMVSS No. 103, “Windshield defrosting and defogging systems,” which requires vehicles to have adequate defroster systems meeting minimum performance requirements for windshield clearance in below-freezing conditions, down to minus 40 degrees Fahrenheit. NHTSA notes that a properly functioning and compliant defroster is specifically designed to prevent accumulation of frost and frozen precipitation on the windshield by actively raising the windshield's temperature. FMVSS No. 103 also requires that the washer system not fail permanently if it does freeze. Further, for internal combustion engines, as the vehicle's engine reaches operating temperature, the heat generated under the hood helps to maintain the windshield washer system at an elevated temperature during travel, minimizing the risk of washer fluid freezing in the system and preventing the system from operating (this may not be the case for electric vehicles, which may or may not have a heating element to prevent fluid from freezing).

Finally, NHTSA acknowledges that the petitioner suggested as a “side note” that methanol should be substituted for ethanol in winter-specification windshield washer fluid because of methanol's potentially dangerous effects on humans. To the extent that the petitioner is suggesting that ethanol should be required under FMVSS No. 104 or under a new FMVSS, the petitioner does not relate that suggestion to an unmet vehicle safety need, as required by 49 U.S.C. 30111(a).

Based on the above reasons, NHTSA believes that the petitioner has failed to demonstrate a clear need for safety attributable to summer-specification or allegedly non-compliant winter-specification windshield washer fluid. While we agree that failure of the windshield washing system could result in reduced windshield visibility, the petitioner did not provide evidence demonstrating the scope of this potential safety problem or whether such a problem could be attributable to winter-specification windshield washer fluid, nor is it clearly established by available safety data. Accordingly, NHTSA has concluded that the petitioner has not shown an unmet safety need that would justify the mandate to use of year-round standardized winter-specific windshield washer fluid, as required by 49 U.S.C. 30111(a). NHTSA notes that it will not hesitate to exercise its defect and recall authority should any windshield washing system fail and create an unreasonable risk to safety. 3

Even if an unmet motor vehicle safety need exists, the Safety Act requires that an FMVSS meet the motor vehicle safety need. 4 The petitioner states that reduced or zero windshield visibility can cause accidents resulting in bodily injury and fatalities. The petitioner then suggests that an easily implemented solution to solve this problem is the elimination of summer-specification windshield washer fluid and standardization of winter-specification windshield washer fluid. However, the petitioner's primary support for this suggestion is a personal anecdotal description of an incident in which the petitioner states his windshield washer fluid froze in cold temperatures, obscuring his windshield's visibility and requiring him to pull over and wait for his windshield defroster system to thaw the frozen washer fluid. The petitioner states his belief that this incident occurred because summer-specification windshield washer fluid was added to his car's washer fluid reservoir in a warmer state and froze after he returned to a colder climate. Other than this personal anecdote, the petitioner provides no supporting data or research linking frozen windshield washer fluid to crashes or fatalities to demonstrate that banning summer-specification windshield washer fluid and mandating standardized winter-specification windshield washer fluid would effectively prevent fatalities or injuries. Further, the petitioner provides no supporting data substantiating the scope of the alleged safety issue, nor any evidence that the proposed solution would remedy the alleged safety issue. Absent such supporting data or evidence, NHTSA cannot find that requiring year-round standardized winter-specification windshield fluid would effectively prevent fatalities and injuries.

For the foregoing reasons NHTSA is denying the petition based on the lack of sufficient information and evidence discussed above. The petitioner has not demonstrated a safety need and a solution that would justify NHTSA reallocating its limited resources from rulemakings that are mandated by Congress and others that have a demonstrated safety need with solutions available to resolve those needs.

Table of Contents I. Executive Summary II. Background A. Background on Air Bag Systems B. Background on Advanced Air Bag Systems C. Appendix A-1's Current Framework III. Development of the 2020 NPRM IV. Amendments to Appendices A and A-1 as Part of This Final Rule Differences Between the NPRM and the Final Rule A. Deletion of the Evenflo Discovery Adjust Right and Addition of the Evenflo NurtureMax Into Subpart B B. Addition of the Evenflo Litemax 35 #3305xxxxx Instead of the Evenflo Embrace Into Subpart B C. Addition of the Cybex Cloud Q With SensorSafe Instead of the Cybex Aton 2 Into Subpart B D. Addition of the Nuna Pipa RX With Pipa RELX Base Instead of the Britax B-Safe 35 Into Subpart B E. Deletion of the Britax Roundabout EL02XX and Addition of the Nuna Rava #CS05116CVR Into Subpart C F. Addition of the Britax Poplar #E1C93xx Instead of the Britax Marathon ClickTight Into Subpart C G. Addition of the Graco Contender Slim Instead of the Graco Contender 65 Into Subpart C H. Addition of the Evenflo Chase Plus #307xxxxx Instead of the Evenflo Chase #306xxxxx Into Subparts C&D I. Correction and Name Updates for 6 Proposed CRSs V. Discussion of Comments to the NPRM A. Summary of Comments B. The CRSs Proposed in the NPRM C. Availability of the Safety 1st Dreamride SE Latch #IC238 D. Frequency of Updates to the Appendix E. Test Procedures i. Testing With the CRABI Dummy ii. Seat Belt Load Requirement iii. Compliance Concerns With New Heavier CRSs iv. Safety Need for Appendix Update F. Comments on the Proposed Regulatory Text G. Comments on the Compliance Date VI. Discussion of Benefits and Costs Associated With the Final Rule VII. Regulatory Analyses I. Executive Summary

This final rule amends FMVSS No. 208 to update the child restraint systems (CRSs) listed in appendix A-1 of the standard. The CRSs in appendix A-1 are used by NHTSA to test advanced air bag suppression or low risk deployment systems to ensure that they mitigate the risk of harm to children and infants by either suppressing or deploying the air bag in a low-risk manner in the presence of a child in a CRS. NHTSA is updating appendix A-1 to reflect the changes to the availability of CRSs in the marketplace since 2008 when the appendix was last updated.

The amendments finalized in this rule will replace all the CRSs listed in appendix A-1. This final rule will allow a phase-in of the amendment to give manufacturers reasonable time to certify their advanced air bag systems using the new CRSs, with optional early compliance permitted. To effectuate the phase-in using the regulatory framework of FMVSS No. 208, this update will move the CRSs that are now in appendix A-1 to appendix A and reference the new proposed CRSs in appendix A-1.

This final rule will allow the agency to test advanced air bags with CRSs that are more representative of the current CRS market. Furthermore, since the last significant update to the appendix was in 2008, many CRS models listed in the current appendix have been discontinued and are difficult and time-consuming to acquire. This update to appendix A-1 will make it easier for vehicle manufacturers and test laboratories to acquire the CRSs for testing purposes.

NHTSA Has Required Air Bag Systems in Vehicles since the Late 1990s, but Early Air Bag Systems Risked Injury to Certain Populations. To prevent or mitigate the risk of injuries or fatalities in frontal crashes, Federal Motor Vehicle Safety Standard (FMVSS) No. 208, Occupant crash protection, 1 requires passenger vehicles to be equipped with seat belts and frontal air bags. Although FMVSS No. 208 did not require frontal air bags on passenger cars until model year (MY) 1998 and on multipurpose passenger vehicles and light trucks until MY 1999, air bags were already in widespread use by the early 1990s. These early-generation air bags were highly effective in protecting occupants in frontal crashes but caused a number of injuries and fatalities to certain occupants who were especially vulnerable to air bag-related risks. Frontal air bags posed the largest threat to occupants vulnerable to air bag-related risks.

Since the introduction of air bag systems into vehicles, NHTSA has maintained two consistent messages relating to children and air bag systems. First, NHTSA has consistently recommended that children under the age of 13 be seated in the back seat of vehicles. If consumers were to always seat their children—whether positioned in a CRS or not—in the back seats of their vehicles, air bags would pose very little risk to children. Frontal air bags pose a bigger risk to children than side curtain air bags, which pose very little threat to any occupant. Since vehicle back seats are only equipped with side curtain air bags, the risk of harm from air bags is significantly reduced for children sitting in the back seat. However, there are scenarios when a child needs to be seated in the front seat of a vehicle, and there are scenarios where a caretaker may simply decide that the child will be safe sitting in the front seat of a vehicle. To ensure that children (and others who may be harmed by air bag systems) who are seated in the front seat of vehicles are protected from air bag-related harm, NHTSA has long maintained that the long-term solution was the development and widespread implementation of advanced air bag systems that can sense the weight and size of the occupant seated and adjust air bag deployment to protect at-risk passengers. However, during the 1990s, when air bag-related injuries and fatalities emerged as a safety problem, advanced air bags were still a nascent technology.

To provide time for the development and dissemination of advanced air bag systems into new vehicle production, and to address safety concerns posed by pre-advanced air bag systems in vehicles already on the road, NHTSA implemented an array of measures designed to protect those passengers most susceptible to air bag-related injuries. Although early air bag systems posed threats to several different populations, a particular focus of these measures was to protect children from air bag-related injuries and fatalities. Early data indicated that children were at particularly significant risk of harm from air bags. The data indicated that children who were both seated in CRSs and seated without CRSs were at risk of serious injury or death when seated in a position with a frontal air bag. Because of the agency's significant concern for the safety of children, NHTSA took multiple actions throughout the 1990s to protect children from potential harm from air bags.

NHTSA's Recommendations Targeted at Behavioral Changes to Protect Children from Air Bag Systems. First, the agency began providing CRS recommendations informing caretakers how and where they should equip child restraints in a vehicle. NHTSA's recommendation has always been to place CRSs in the back seat of vehicles. There are different CRSs for children of different ages, and NHTSA's recommendations change based off of the child's age and size. 2 It is important to note that NHTSA recommends that the child be properly restrained in the back seat of a vehicle for all these different stages.

NHTSA used several communications to further the agency's goal of changing behavior to protect children from early air bag systems. For example, in the early 1990s, the agency conducted testing that showed that using a rear-facing child restraint in the front seat of a vehicle where frontal air bags were active presented a significant risk to child occupants. In December of 1991, the agency issued a Consumer Advisory warning owners of rear-facing child restraints to not use such devices in the front seat of a vehicle equipped with a passenger air bag. Throughout the 1990s, NHTSA released several additional News Releases on this issue. On October 27, 1995, after several fatalities of children seated in air bag-equipped seating positions, NHTSA issued a warning in a press release, titled “SAFETY AGENCY ISSUES WARNING ON AIR BAG DANGER TO CHILDREN.” In the press release, the agency warned that children sitting in air bag-equipped seating positions not restrained by a seat belt could be seriously injured or killed by an air bag. During the late 1990s, the agency also published several articles in widely circulated journals and periodicals on the dangers air bags pose to children. The agency has continued this education campaign by publishing information on NHTSA's website on the dangers air bags pose to children.

NHTSA Regulatory Action Taken to Protect Children from Early Air Bag Systems. In addition to efforts to change caretaker behavior, NHTSA has also taken regulatory action on this issue. In 1993, the agency issued a final rule that, in part, required vehicles equipped with air bags to include labels on sun visors providing specific cautions, including a warning not to install rear-facing child seats in the front passenger seat. The agency took further regulatory action in 1994, when it required rear-facing child restraints manufactured on or after August 15, 1994, to include a warning label against using the restraint in any vehicle seating position equipped with a frontal air bag. Finally, in 1995 and 1997, NHTSA took regulatory action targeted at vehicle technology when the agency created a process for vehicle owners to petition the agency to allow vehicle owners or lessees to have an air bag on-off switch installed in their vehicle. 3 Although on-off switches have been an effective tool in protecting children from air bag systems, as discussed above, the agency has consistently viewed advanced air bag systems as the best protection for children seated in air bag-equipped seating positions. Air bag on-off switches carry a significant risk of misuse, as individuals who would typically benefit from the protection of air bag systems may forget to turn a system back on after turning it off for a child passenger. The agency believed the advent of advanced air bag technology would essentially resolve this misuse risk by being able to sense the occupant seated in an air bag-equipped seat and activating or deactivating the system based on the occupant.

On May 12, 2000, NHTSA issued the Advanced Air Bag Rule  4 to reduce the frequency and severity of air bag-related injuries to small adults and young children. To this end, the Advanced Air Bag Rule amended FMVSS No. 208 to add new performance requirements for the front passenger air bag in the presence of a child in a CRS.

Although the Advanced Air Bag rule was targeted at protecting all individuals from potential harm from air bags, specific requirements were included that were targeted at protecting children. The Advanced Air Bag Rule allows manufacturers to provide child protection using one of three compliance options. The first option requires the front passenger air bag system to automatically suppress when a child (whether in a CRS or not) is present (“suppression”). The second option requires that the front passenger air bag deploys only at a low level of force when a child (whether in a CRS or not) is present (“low risk deployment” or “LRD”). For these first two options, the vehicle must provide passenger-side protections for child-sized test dummies in various positions, including in a CRS. The third compliance option requires the tracking of the passenger occupant's motion and suppresses the air bag if they are too close to the air bag (“dynamic automatic suppression system” or “DASS”). To comply using dynamic automatic suppression, a manufacturer must develop an acceptable test procedure, which must be adopted into FMVSS No. 208 through an expedited rulemaking procedure. To date, no manufacturer has attempted to certify using the DASS option. FMVSS No. 208 permits vehicle manufacturers to choose different compliance options for different performance tests and is technology neutral with regard to how a vehicle complies.

For tests that involve air bag performance in the presence of anthropomorphic test dummies in CRSs, manufacturers are required to certify that their vehicles will comply with the advanced air bag requirements when tested by NHTSA. FMVSS No. 208 sets out requirements that advanced air bag systems must meet to comply with the standard when tested with several different anthropomorphic test dummies. For the purposes of advanced air bag suppression systems, the standard outlines test procedures for testing with the 12-month-old CRABI dummy, the 3-year-old child dummy, and the 6-year-old child dummy. 5 The standard allows NHTSA to test suppression systems with any of these dummies and also includes procedures for testing the suppression systems with these dummies equipped in CRSs to ensure suppression systems can differentiate between an adult sitting in an air bag equipped seat and a CRS restraining a child. For each of the test procedures explaining how to test with each respective dummy, the standard identifies which subpart in appendix A-1 to reference in determining which CRSs to test with. For example, for the 3-year-old dummy automatic suppression test, the standard instructs the tester that the system must function with the dummy restrained in any child restraint specified in sections C and D of appendix A-1.

As part of that test procedure in FMVSS No. 208, NHTSA listed the CRSs that the agency would test within appendix A of FMVSS No. 208. NHTSA intended for the CRSs listed in appendix A to be representative of the array of available CRSs on the market across many CRS manufacturers. To keep appendix A up to date, NHTSA amended it in final rules issued in December 2001  6 and November 2003  7 to replace certain CRSs that were no longer in production and to add two LATCH-compatible CRSs, respectively. 8

Two CRS-related appendices appear at the end of FMVSS No. 208: appendix A and appendix A-1. NHTSA most recently updated appendix A in a final rule issued in November 2008. 9 As part of this final rule, NHTSA created “appendix A-1” to facilitate phasing in the requirement to certify vehicles with the updated CRSs. 10 Appendices A and A-1 both still remain at the end of FMVSS No. 208, and, as discussed in greater detail below, this final rule updates both appendices.

The CRSs listed in appendix A-1 are broken up into four subparts. Subpart A lists “car bed” CRSs that the agency can use to test the suppression system of a vehicle that has been certified as complying with S19 of FMVSS No. 208. Subpart B lists rear-facing infant CRSs that the agency can use to test the suppression system or the LRD capabilities of a vehicle that is certified as complying with S19 of FMVSS No. 208. Subpart C lists forward-facing toddler and convertible CRSs  11 that the agency can use to test the suppression system or the LRD capabilities of a vehicle that has been certified as complying with S19 or S21 of FMVSS No. 208. Subpart D lists CRSs that are or can be used as a belt-positioning seat (commonly called belt-positioning booster seats (BPBs)) ( e.g., combination and 3-in-1 CRSs) and that the agency can use to test the suppression system or the LRD capabilities of a vehicle that has been certified as complying with S21 or S23 of FMVSS No. 208. 12

NHTSA's Self-Certification System and Appendix A-1. The Motor Vehicle Safety Act prohibits the manufacturing, selling, and importing of motor vehicles and motor vehicle equipment that do not comply with the FMVSS. 13 Accordingly, one of NHTSA's most important priorities is ensuring that motor vehicles and motor vehicle equipment on the market comply with the FMVSS. NHTSA can enforce compliance with the FMVSS through statutorily created recall authority as well as by levying civil penalties. 14

To determine whether motor vehicle equipment complies with the FMVSS, NHTSA must test that equipment. NHTSA publishes its test procedures for each FMVSS so the public is aware of how NHTSA will determine compliance with the relevant FMVSS. Although NHTSA publishes its test procedures, the Motor Vehicle Safety Act makes clear that manufacturers have the responsibility to certify their own motor vehicles and motor vehicle equipment for compliance with the FMVSS. 15 This self-certification regime puts the onus on manufacturers to police themselves when introducing motor vehicles or motor vehicle equipment into the market, which means that although NHTSA publishes its own test procedures, manufacturers are free to test their products for compliance in other ways. In other words, NHTSA's test procedures are publicly available as part of the FMVSS, but manufacturers are under no obligation to compliance test using NHTSA's procedures—a manufacturer's only obligation is to certify compliance, but it may do so using its own testing methods. Appendix A-1 is part of the test procedures of FMVSS No. 208.

Appendix A-1 informs manufacturers which CRSs NHTSA will test with when the agency compliance tests advanced air bag systems. Manufacturers are under no obligation to test with the CRSs that NHTSA tests with, meaning that appendix A-1 sets merely a floor for the CRSs a manufacturer may test with. In fact, when the agency decided to include appendix A-1 as part of FMVSS No. 208, it did so with the expectation that manufacturers would test more than just the seats included in the appendix, as a manufacturer's priority should be ensuring that its advanced air bag systems function properly with all CRSs on the market.

On October 29, 2020, NHTSA published an NPRM to update appendix A-1. 16 The purpose of this proposed update was to ensure that the list of seats included in appendix A-1 reflects the current CRS market. The CRS market is constantly changing, with companies releasing new versions of seats, new models of seats, and novel seat designs every year. Because the appendix was last updated in 2008, many of the seats in the appendix are no longer sold by manufacturers. This means that both NHTSA and manufacturers have to find second-hand versions of many of the seats listed in the current appendix for compliance testing. Over time, it has become increasingly difficult to procure some of the seats in the appendix. Furthermore, there are certain trends in the CRS market that the current seats listed in the appendix do not account for. For example, as discussed in more detail below, data indicate that CRSs have become heavier overall. This change could pose a potential issue for advanced air bag system sensing technology, as sensors may not be able to detect the difference between an adult seated in an air bag-equipped seat and a heavy child restraint with a child seated in the restraint. Under the current list, NHTSA would not be testing many of those heavier seats to ensure compliance with FMVSS No. 208. The agency not only wanted to make the CRSs in the appendix easier to procure, but also wanted to ensure that the seats included in the appendix were a representative sample of the current CRS market.

NHTSA's Methodology in Choosing the Proposed CRSs. When deciding which seats to replace and include in the proposed update to appendix A-1, NHTSA considered whether a particular CRS had been a high-volume model, whether it had mass and dimensions that are representative of many CRSs on the market, whether its mass and dimensions represented outliers, and whether a variety of CRS manufacturers were represented in the appendix. The agency also assessed whether the assortment of CRSs in the appendix ensured that NHTSA would be adequately testing the robustness of air bag automatic suppression systems under real world conditions. Additionally, NHTSA conducted a systematic evaluation of the CRSs currently in appendix A, and of data collected through the agency's Ease of Use (EOU) program. 17

The agency assessed child restraint system physical dimensions and weight (mass) to identify which CRSs have dimensions that were representative of the average restraint in today's market, and which were possible outliers (see docketed Technical Assessment for data). In looking for outliers, the agency considered CRSs with dimensions and weight that were markedly outside of those of the “average” CRS. The goal in identifying outliers was to ensure the updated appendix was fully representative of the current CRS market. Additionally, the agency identified which CRSs had high production totals (based on confidential manufacturer data) to determine which CRSs were likely to have the greatest market share.

In choosing which CRSs to include in the updated appendix, the agency sought to ensure that advanced air bag systems would be designed and calibrated to perform satisfactorily when used with a wide range of CRSs. For example, because rear-facing CRSs with either low or high seat back heights can pose challenges for LRD systems, the agency sought to include rear-facing CRSs of varying seat back heights for LRD testing purposes. Similarly, because the agency believes that certain features like handles and sunshields on rear-facing infant carrier CRSs can lead to false readings by vision-based sensors used in some advanced air bag systems, the agency included rear-facing CRSs that have handles and sunshields in the appendix. Based on this methodology, the agency proposed a series of deletions and additions to appendix A-1 in the 2020 NPRM. The agency also proposed updating two existing entries in appendix A-1 to reflect model name changes. For detailed information on the agency's proposed additions and deletions, please reference the NPRM.

The comment period for the NPRM closed on December 28, 2020. Eight comments (from six commenters) were received in response to the NPRM, and a discussion of those comments with the agency's responses can be found in section VI below.

As described above, there are currently two appendices to FMVSS No. 208: appendices A and A-1. Appendix A currently lists the CRSs that were adopted as part of the advanced air bag final rule in 2000. Appendix A-1 currently lists the CRSs that were adopted as part of the first appendix A update in 2008. In the 2008 final rule, the agency decided to adopt a phase-in process for manufacturer compliance, and keeping the CRSs from the advanced air bag rule as part of the standard was necessary for the agency to continue compliance testing during the phase-in period.

After considering the factors for decision-making discussed in the previous section of this preamble, and after analyzing feedback from both the public and CRS manufacturers, NHTSA is making three sets of amendments to appendices A and A-1 as part of this final rule. First, the agency is deleting all seats currently listed in appendix A from the standard. Because the phase-in period for the 2008 update has long since passed, there is no reason to keep the seats currently listed in appendix A as part of the standard. Second, the agency is moving the seats adopted as part of the 2008 appendix update (the current appendix A-1) to appendix A. Third, and lastly, the agency is adding 20 new CRSs to appendix A-1, which will constitute the update that the following discussion focuses on.

To help clarify the table below, it is important to note that five CRSs are listed in both subparts C and D for testing purposes, which is why the “TOTAL AFTER CHANGES TOTAL” column reflects 25 in table 1 below. (In the current appendix A-1 four CRSs are listed in both subparts C and D.) Table 1 shows the deletions and additions by subpart in appendix A-1.

Tables 2 and 3 below provide the detailed make and model information for NHTSA's deletions and additions to appendix A-1. There are some differences between the list of deletions and additions proposed in the NPRM and the deletions and additions adopted in this final rule, and a detailed discussion of those changes and the rationales behind those decisions can be found in the section below. All the deletions proposed in the NPRM are being adopted in this final rule, and the reasons for each deletion were discussed in detail in the NPRM. Generally, the proposed deletions were based on CRSs that did not offer any unique characteristics, CRSs that were produced in small quantities, or CRSs that are no longer in production and have not been for some time. Because the proposed deletions are all being adopted, NHTSA recommends that interested members of the public reference the NPRM for specific explanations of deletions for individual seats. There are two additional deletions and additions being adopted in this final rule. Because there are some differences between the proposed list of additions and deletions in the NPRM and the additions and deletions being adopted in this final rule, detailed explanations of those changes can be found in the following section. As discussed above, although this final rule says that the agency is “deleting” all seats from the current appendix A-1, those CRSs will still appear in the appendix to FMVSS No. 208, but they will appear under appendix A.

There are several differences between the 2020 NPRM and this Final Rule. Most notably, NHTSA decided to replace 6 of the 18 seats proposed as additions to appendix A-1 in the NPRM and update the model names for 6 of the proposed CRS additions. The agency made these decisions based on feedback from manufacturers and commenters. After publishing the NPRM, NHTSA contacted the CRS manufacturers of the proposed added seats to verify the production and design status of each proposed addition. The agency followed this same process when NHTSA last updated appendix A-1 in 2008.

In the explanations below for why certain CRSs have been chosen as replacements for the proposed CRSs, the term “footprint” is used a number of times. For clarification, when using the term “footprint,” the agency is referring to the general size of the CRS base that contacts the seat cushion. The footprint on every CRS model is unique and some air bag suppression systems have difficulty sensing CRSs with certain footprints.

The NPRM also proposed an update to model identification information for two seats: the Evenflo Discovery Adjust Right and the Britax Roundabout E9L02XX. After consulting with the manufacturers, instead of updating the model information for these two seats, the agency has decided to delete them from appendix A-1. Therefore, in addition to the changes to 12 of the 18 proposed additions to appendix A-1, NHTSA will be adding two different seats to replace the Evenflo Discovery Adjust Right and the Britax Roundabout E9L02XX as part of this Final Rule.

A detailed discussion of the rationales for each change between the NPRM and Final Rule can be found in the subsections below.

As noted above, the NPRM proposed a model name update for the Evenflo Discovery Adjust Right to the Evenflo Nurture #362xxxxx. Based on input from Evenflo, and as shown on their website, the Evenflo Nurture model is no longer available. Because the goal of this Final Rule is to update appendix A-1 to include CRSs that are representative of today's CRS market and readily available, it would be illogical to include a CRS that is not listed on a manufacturer's website. Instead of keeping the Evenflo Discovery Adjust Right/Nurture in appendix A-1, this Final Rule will delete this CRS from subpart B, and will add the Evenflo NurtureMax as a replacement rear-facing CRS in subpart B. The Evenflo NurtureMax is not considered an equivalent replacement because it does not have the same structural design as the Discovery Adjust Right/Nurture, but it does have similar characteristics ( e.g., the Evenflo NurtureMax is a lightweight rear-facing CRS with a shorter than average footprint and it is a popular CRS in the U.S.).

The NPRM proposed the addition of the Evenflo Embrace #315xxxxx, a rear-facing infant seat that was described as lightweight and popular, into subpart B. Based on feedback from the manufacturer and because the Evenflo Embrace model is no longer listed as part of the lineup of rear-facing CRSs on Evenflo's website, this model is no longer being added to the appendix. After evaluating other available CRSs with similar characteristics as the Evenflo Embrace the agency decided to add the Evenflo Litemax, which is also a popular, lightweight, rear-facing infant CRS with a long footprint.

The NPRM proposed the addition of the Cybex Aton 2, a rear-facing infant seat, into subpart B. The NPRM described the Cybex Aton 2 as being a heavy infant seat and having a unique footprint because of its shape and because it is designed to accommodate a load leg. Due to feedback from the manufacturer and because the Cybex Aton 2 is no longer listed on Cybex's website, the agency is instead adding the Cybex Cloud Q with SensorSafe, 19 which has an essentially equivalent base as the Cybex Aton 2 and is just slightly heavier, which is acceptable since the Aton 2 was proposed as a heavy rear-facing CRS (see docketed Technical Assessment for dimensions and pictures). The Cybex Cloud Q also has a load leg like the Cybex Aton 2.

The NPRM proposed the addition of the Britax B-Safe 35 #E1A72xx, a rear-facing infant seat, into subpart B. The NPRM described it as being heavy with a large footprint and as capturing a large portion of the infant CRS market. Based on input from Britax, we decided against including this CRS in the appendix. After evaluating other available rear-facing infant CRSs on the market, we are adding the Nuna Pipa RX with the Pipa RELX base, which has similar characteristics as the Britax B-Safe 35. The Nuna Pipa RX with the Pipa RELX base is a heavy rear-facing infant CRS, with a wide and long footprint.

As noted above, the NPRM proposed a model name update for the Britax Roundabout E9L02XX to reflect its new name, the Britax Allegiance #E9LR4xx. Based on input from Britax, and because the Britax Allegiance model is no longer listed on Britax's website as part of its lineup of CRSs, it would be illogical to include a CRS that is no longer part of Britax's CRS lineup. Instead of keeping the Britax Roundabout E9L02XX/Allegiance #E9LR4xx in appendix A-1, this final rule will delete this CRS from subpart C, and will add the Nuna Rava as a replacement convertible CRS in subpart C. The Nuna Rava has similar characteristics as the Britax Allegiance ( e.g., it is a heavy convertible CRS with a wide footprint; see the docketed Technical Assessment for dimensions and pictures). Additionally, the Nuna Rava is also a popular CRS.

The NPRM proposed the addition of the Britax Marathon ClickTight #E1A38xx, a convertible CRS, into subpart C. It was described as a heavy convertible CRS with a wide footprint. Based on feedback from Britax, we have decided against adding the proposed Marathon ClickTight model and we are instead adding the Britax Poplar #E1C93xx into subpart C. The manufacturer indicated that the Britax Poplar is dimensionally similar to the Britax Marathon ClickTight, so the agency views it is as a suitable alternative.

The NPRM proposed the addition of the Graco Contender 65, a convertible CRS, into subpart C. The NPRM described it as a lighter than average convertible CRS with a narrow and deep footprint. Based on feedback from the manufacturer we have decided not to add the proposed Contender model and the agency is instead adding the Graco Contender Slim model, which is essentially an equivalent model to the Graco Contender 65, into subpart C. Their footprint and dimensions are very similar, and the Contender Slim is a lighter than average convertible with a narrow footprint (see docketed Technical Assessment for dimensions and pictures).

The NPRM proposed the addition of the Evenflo Chase #306xxxxx, a combination CRS, into subparts C and D. After consulting with the manufacturer, the agency has decided to instead add the Evenflo Chase Plus. The manufacturer indicated that the Evenflo Chase Plus will be more widely available than the Evenflo Chase, and that the CRSs are nearly equivalent (see docketed Technical Assessment for dimensions and pictures). It is also a popular combination CRS. Accordingly, the agency is adding the Evenflo Chase Plus #307xxxxx, into subparts C and D.

The NPRM proposed the addition of the Cybex Eternis, a 3-in-1 CRS, into subparts C and D. Based on input from the CRS manufacturer, the correct model name is the Cybex Eternis S with SensorSafe. Accordingly, the agency has added the “S” designation to the name of the CRS as well as the “SensorSafe” designation.

The NPRM proposed the addition of the Safety 1st Dreamride SE LATCH #IC238xxx. Based on input from the manufacturer, the correct model name is the Safety 1st Dreamride with LATCH #IC238xxx. Accordingly, the agency has updated the name of this CRS as part of this final rule.

The NPRM proposed the addition of the Graco 4Ever All-in-1. Based on input from the manufacturer, the correct model name is the Graco 4Ever DLX. Accordingly, the agency has updated the name of this CRS as part of this final rule.

The NPRM proposed the addition of the Cosco Finale #BC121xxx. Based on input from the manufacturer, the updated model name for this seat is the Cosco Finale #BC110xxx. Accordingly, the agency has updated the name of this CRS as part of this final rule.

The NPRM proposed the addition of the Graco Backless Turbobooster. Based on input from the manufacturer, the correct model name is the Graco Turbobooster Backless Booster Seat. Accordingly, the agency has updated the name of this CRS as part of this final rule.

The NPRM proposed the addition of the Britax Grow with You #E1C19xx. Based on input from the manufacturer, the correct model name is the Britax Grow with You Clicktight #E1C19xx. Accordingly, the agency has updated the name of this CRS as part of this final rule.

There were eight comments submitted in response to the NPRM. 20 Commenters touched on a variety of topics, including the CRSs proposed in the NPRM, concerns about the frequency with which the agency updates appendix A-1, test procedures, the proposed regulatory text, and compliance dates. Some commenters also had concerns with the potential costs and effort necessary for manufacturers to comply with testing using the new CRSs proposed in the NPRM. The agency's summary of comments and responses can be found in the subsections below.

The Juvenile Products Manufacturers Association (JPMA) submitted a comment providing feedback on the CRSs NHTSA proposed in the NPRM. Table 4 shows the feedback JPMA provided in its comment on specific seats proposed in the NPRM, along with the agency's response to that feedback.

The Alliance for Automotive Innovation (The Alliance) commented specifically on NHTSA's proposed inclusion of the Safety 1st Dreamride SE Latch #IC238. The Alliance argued that, because the Safety 1st Dreamride SE Latch #IC238 is one of the only available infant car beds on the market, NHTSA should create a formal means for automakers to procure seats listed in appendix A-1.

Agency Response: NHTSA will not be creating a formal process to acquire CRSs listed in appendix A-1 as part of this final rule. The Alliance is correct that part of the agency's rationale in updating appendix A-1 is to ensure manufacturers can more easily acquire the CRSs listed in appendix A-1. As stated previously, it can be difficult to acquire the CRSs currently listed in appendix A-1 because many of the CRSs have been discontinued by manufacturers. This final rule will resolve that issue by updating appendix A-1 to include CRSs currently on the market. However, under the Safety Act, manufacturers are required to self-certify their own motor vehicles and motor vehicle parts. 21 As part of this certification process, NHTSA strives to ensure that manufacturers and the public are aware of how the agency will test motor vehicles and motor vehicle parts for compliance with the FMVSS. That being said, once NHTSA has made clear how it will test a motor vehicle or motor vehicle part, it is up to the manufacturer to ensure its products comply. The agency believes it has significantly improved the ease with which manufacturers can acquire the CRSs in appendix A-1 by ensuring all CRSs in appendix A-1 are currently available for purchase. In particular, although the Safety 1st Dreamride SE Latch #IC238 is one of the only available infant car beds on the market, it is available for purchase by the public. Manufacturers do not need to rely on NHTSA to procure CRSs for them. Accordingly, the agency believes that manufacturers should easily be able to acquire the CRSs listed as part of this final rule. For the reasons discussed above, NHTSA will not be creating a formal process for manufacturers to acquire the CRSs listed in appendix A-1 as part of this final rule.

The Automotive Safety Council commented that it would like NHTSA to adopt an official frequency with which the agency will update appendix A-1 going forward. JPMA also mentioned in its comment that it would appreciate more frequent updates to appendix A-1 from NHTSA. The Alliance also commented on the need for a more reliable and consistent manner of updating the appendix in its August 2023 supplemental comments.

Agency Response: NHTSA will not be adopting a specific frequency for updating appendix A-1 as part of this final rule. As discussed earlier in this preamble as well as in the NPRM, the agency is aware that a significant amount of time has passed since it last updated appendix A-1 in 2008. The agency is aware that this time-lapse has rendered appendix A-1 outdated, and many of the seats listed in appendix A-1 are no longer in production, which makes it difficult for manufacturers to acquire certain CRSs that NHTSA currently tests with. One of NHTSA's goals with this final rule is to ensure manufacturers can easily acquire the CRSs listed in appendix A-1. Another goal with this final rule is to ensure the CRSs NHTSA uses to test for compliance with FMVSS No. 208 are representative of the CRS market. The agency believes that committing to a specific frequency to update appendix A-1 would not align with the ever-changing CRS market. Having the discretion necessary to choose when to update appendix A-1 will allow the agency to adapt as the CRS market adapts. Furthermore, committing to a specified time frame for updating the appendix would likely interfere with the agency's ability to manage its rulemaking resources as it deems appropriate in light of other priorities and statutory mandates and could hamper its ability to respond quickly to changes in the CRS industry or air bag system designs. As such, NHTSA is not adopting a specific frequency to update appendix A-1 as part of this final rule.

The Alliance indicated in its comment that it would like clarification on test procedure installation for two forward-facing CRSs proposed in the NPRM. Specifically, the Alliance requested that NHTSA explain how it should test the Cosco Finale DX #BC121 and the Chicco MyFit #04079783-0070 with the 12-month-old CRABI dummy when the owner's manuals for both of those seats indicate that those CRSs are designed to be used for children weighing more than the 12-month-old CRABI dummy weighs. The Alliance reiterated its concerns in its August 2023 supplemental comments.

Agency Response: As discussed above, NHTSA is correcting the name of the Cosco Finale DX #BC121 and is instead including the Cosco Finale #BC110 as part of this final rule. According to the manufacturer, this is merely a model name change and the seat design and intended use are functionally the same, meaning the Alliance's comment still applies. FMVSS No. 208, S19.2.1, specifies the use of the 12-month-old dummy for suppression testing in any of the CRSs listed in the appendix subparts C and D as appropriate. The term “as appropriate” is informative here, as it makes clear that NHTSA will only suppression test a seat in appendix A-1 subparts C and D with the 12-month-old dummy if it is appropriate to do so with that seat. As discussed in the background section above, FMVSS No. 208 sets out testing requirements for advanced air bag systems using the 12-month-old CRABI dummy, the 3-year-old child dummy, and the 6-year-old child dummy. For all seats listed in appendix A-1, NHTSA will only test with the dummies that are the appropriate size for each respective CRS according to the manufacturer's instructions. Accordingly, because the Cosco Finale DX #BC121 and the Chicco MyFit #04079783-0070 are CRSs that are designed to restrain children who weigh more than the 12-month-old CRABI dummy, NHTSA would not suppression test with the 12-month-old CRABI dummy for those CRSs.

The Alliance requested clarification of the seat belt cinching requirement listed in the FMVSS No. 208 test procedures. The Alliance commented that for certain CRSs listed in the NPRM with belt tensioning devices, “it is possible to exceed the 134 N belt load by 80-106 N if slack is removed from the belt prior to applying the child seat belt tensioning mechanism.” Furthermore, the Alliance indicated that it is concerned that in the field, these belt tensioning mechanisms can exceed the belt tension in the manufacturer's compliance testing, and, in combination with heavier CRSs, could increase the risk of an undesired air bag deployment ( e.g., a child heavier than the dummy and excessive belt load due to child seat belt tensioning systems could be misclassified as a small adult occupant).

Agency Response: In response to this comment, NHTSA performed further testing with CRSs proposed in the NPRM that have belt tensioning mechanisms. The agency acknowledges that when these seats are installed using the manufacturers' instructions, these seats automatically tension past the maximum tension of 134 N described in FMVSS No. 208 S20.2.1.5(c). The tension that these seats tension to varies depending on the seat they are installed in as well as the specific CRS. Accordingly, the agency acknowledges that if the manufacturers' instructions for these seats are followed, it would likely not be possible to test within the tension range outlined in S20.2.1.5(c).

The agency has decided to include three seats with belt tensioning systems as part of this final rule, despite the fact that they likely cannot be installed by following the CRS manufacturers' instructions to properly perform the test procedure outlined in S20.2.1.5(c). It is important to note that, for the S20.2.1.5 test procedure, the standard instructs the test conductor to “secure the child restraint by following, to the extent possible, the child restraint manufacturer's instructions regarding proper installation . . .” (emphasis added).

The agency is aware that there are some CRSs on the market that are equipped with belt tensioning systems that may tension past the maximum 134 N outlined in S20.2.1.5. Accordingly, the agency believes it is important to include these CRSs in appendix A, as they represent a segment of the CRS market. Through NHTSA's research on belt tensioning seats, the agency discovered that it is possible to reduce the tension that the belt tensioning devices automatically ratchet to by introducing extra belt webbing when installing the CRS on the vehicle seat. To clarify how to test with these CRSs according to the parameters outlined in S20.2.1.5(c), NHTSA will update its compliance test procedures to instruct labs contracted with NHTSA to introduce extra belt webbing when installing CRSs with belt tensioning devices. The amount of extra webbing that needs to be introduced depends on the CRS and the vehicle seat the CRS is installed on, so the agency will include in the compliance test procedure a method for achieving the required belt tension within the allowable range of zero to 134 N. The agency believes this procedure is consistent with the requirements of paragraph S20.2.1.5(c) because of the “to the extent possible” language used in that paragraph.

The agency decided to keep these CRSs with belt tensioning devices as part of this final rule for multiple reasons. First, as discussed in the NPRM and in the section above describing the difference between the NPRM and the final rule, these seats (Cybex Cloud Q, Britax Poplar, and Britax Grow With You ClickTight) represent important parts of the CRS market when it comes to the characteristics of each CRS ( e.g., weight, footprint dimensions and designs). The agency believes that because these seats are part of the CRS market and because they have characteristics the agency wants to include in the appendix for testing the effectiveness of the air bag suppression systems, these seats are worth keeping as part of the amended appendix A-1. Second, these CRSs equipped with belt tensioning devices were not available the last time appendix A-1 was updated in 2008. It is possible that CRSs equipped with belt tensioning devices will become more popular as time goes on. Accordingly, the agency believes it is important to have CRSs equipped with belt tensioning devices as part of appendix A. Although the test procedure will test at a lower tension than these three CRSs typically tension to, NHTSA believes that there is still a safety benefit to testing these CRSs at a reduced tension. Specifically, if an advanced air bag system fails to suppress at a tension in the zero to 134 N range, it is likely that that advanced air bag system would also fail the test at the tighter tension range that the belt tensioning device would usually ratchet to. Accordingly, vehicle manufacturers will know if their air bag suppression systems are compliant with the specific weight and footprint of these CRSs, with the belt tensioned to the appropriate test range. For the reasons listed above, the agency has decided to keep the CRSs with belt tensioning devices as part of this final rule and will update the compliance test procedures to instruct labs on how to install the CRSs to the tension range outlined in S20.2.1.5(c).

The Alliance requested that NHTSA reconsider the CRSs proposed in the NPRM, due to concern about the overall shift to include heavier CRSs in appendix A-1. They further stated that the NPRM did “not sufficiently address the potential for misclassification of occupants. The size and weight of CRSs continue to grow, bringing them (combined with their intended child occupants) closer to the size of small adults. The narrowing of this gap creates an increasing risk of misclassifications by vehicle occupant classification systems (OCS), potentially leading to air bag inflation in instances when suppression might be the safer outcome. Significant changes to the air bag systems and related software will be required to address this matter, along with changes to the vehicle instrument panels to accommodate the new systems.”

The Alliance reiterated these concerns in one of its supplemental comments. The Alliance argued that NHTSA's crash data demonstrates that injury and fatality exposure rates are far greater for smaller stature occupants in fatal crashes ( i.e., over 13 years old) than for younger children ( i.e., under 6 years old) because most younger children are seated in the back seat of vehicles. 22 According to the Alliance, this reflects that the largest group at risk of injury from frontal air bags is smaller statured passengers, not passengers seated in CRSs. The Alliance argued that this further supports their argument about the potential harm of misclassification by OCSs.

The Alliance did not provide actual vehicle compliance test data to support their claims with regards to the performance of current systems with the heavier CRSs. The Alliance suggested that “NHTSA should conduct further analysis to assess the regulatory impact on existing vehicle designs when including CRS that are significantly above the current threshold values established in appendix A-1, and the potential impact this may have on overall occupant safety.” Furthermore, the Alliance argued that the weight of the heavier CRSs in combination with the 6-year-old dummy would begin to overlap with the air bag activation threshold leading to misclassification by the occupant detection system.

Agency Response: The commenters are correct in their assessment that the proposed CRSs in the appendix A-1 update will be heavier overall than the previous version of the appendix, which was last updated in 2008. Since then, the CRS market has evolved significantly. NHTSA has conducted an analysis of recent Ease of Use program data (2015-2020 yearly data) and found an increase in the yearly average weight of boosters and CRSs that can be used as booster seats, which can be seen in table 5 below.

Additionally, the agency analyzed Ease of Use data as far back as 2012 to look at whether heavier CRSs were available at that time as well. NHTSA found booster seats, and CRSs that can be used as booster seats, that are heavier than or have a similar weight as the heavy CRSs identified by the Alliance that have been available as far back as 2012. Examples of such CRSs can be seen in table 6.

The Alliance requested that NHTSA include CRSs that are consistent with the weights of the CRSs currently listed in the appendix. Although the agency acknowledges that manufacturers may have to make design changes to ensure their advanced air bag systems remain compliant with FMVSS No. 208, NHTSA's top priority is passenger safety. As shown above, there is a clear trend toward CRSs increasing in weight. To ensure vehicle air bag suppression systems protect passengers, the agency must ensure that the CRSs being used to test those systems are representative of the current CRS market. Basing the weights of the CRSs included in appendix A-1 off the CRS market in 2008 would not reflect the CRSs that most current parents and caretakers use currently. One of NHTSA's goals with this final rule is to make the FMVSS No. 208 test procedures more representative of the real world, and continuing to test with CRSs from 2008 would do the opposite.

Furthermore, since the inception of the Advance Air Bag Rule, the agency has made clear that it is incumbent on vehicle manufacturers to perform their due diligence by developing and testing their advanced air bag systems with CRSs that are not limited to appendix A. 23 Accordingly, it is reasonable to assume that many manufacturers test their advanced air bag systems with more CRSs beyond what is listed in appendix A-1.

Lastly, NHTSA initiated testing to investigate the Alliance's concerns with the heavier CRSs. Thirteen vehicles were tested, and each vehicle was tested with the CRSs in varying modes. The reports from this testing will be placed in the docket for this rulemaking.

This research demonstrated that four of the 13 vehicles tested were able to suppress the air bag with all the CRSs used for testing, including the three heavier CRSs identified by the Alliance. The passenger air bag activation weight threshold was measured for each vehicle and the thresholds ranged from 55-85 lb. The weight threshold for the four vehicles that suppressed the air bag for all the CRSs and modes tested ranged from 56-77 lb. Further, 8 of the 13 vehicles complied with the requirements with at least 2 of the 3 heavy CRSs identified by the Alliance.

The agency's testing also revealed that the weight of the CRS does not necessarily ultimately determine whether an air bag suppression system activates. For instance, one of the tested vehicles (with an air bag suppression system weight threshold of 73 lb) was able to meet the suppression requirements with two of the three CRSs identified by the Alliance (Cybex Eternis and Britax Grow With You), but did not comply with the Chicco Myfit, which was the lightest of the three. This result seemed to be related to how the Chicco MyFit's footprint loaded the system's pressure sensitive bladder.

The agency testing has shown inconsistent performance for heavier CRSs. However, it is clear from the results that systems can be designed to correctly identify these CRSs and appropriately suppress the air bag. The failure of some vehicles to suppress the air bag in the presence of some of the CRSs is concerning and supports the need for expeditious inclusion of heavier CRSs in the appendix.

The Alliance commented on the limited exposure to air bags for children in CRSs since most children are placed in the rear seats and because most children in the front passenger seat are restrained only by seat belts. The Alliance further noted that “the CRS list currently defined in FMVSS 208 appendix A-1 has been successful in shaping design countermeasures that support a positive downward trend in injuries and fatalities for both child- and small-stature occupants seated in the right-front seating position.”

Agency Response: NHTSA acknowledges and is encouraged by the positive trend of seating children in the back seat. Nonetheless, children are sometimes still restrained in a CRS in the front seat. Furthermore, as discussed above, there is a clear market trend in CRSs becoming heavier on average. This is at least in part due to the rise of the all-in-one (also known as the 3-in-one) seat, which has become popular with caregivers as they only have to purchase one seat for their child, instead of buying new seats as their child grows. Offerings in the all-in-one CRS category have significantly grown in the CRS industry over the past several years. This is evident in the list provided by American Academy of Pediatrics of available all-in-one CRSs for 2023. 24 Additionally, using the 2015-2020 Ease of Use data, the agency looked at the number of all-in-one and combination CRSs and found an increase in the number of these types of CRSs from 84 in 2015 to 120 in 2020. Because the market trends point to an overall increase in CRS weight, NHTSA believes there is a critical safety need to have heavier seats included as part of appendix A-1.

In the NPRM, the agency proposed specific amendments to FMVSS No. 208, to remove the current appendix A (which has been phased out), redesignate appendix A-1 as appendix A, and add the new list of CRSs as appendix A-1.

The Alliance commented that, “Comparing the NPRM which was published on October 29, 2020, and the current standard, it seems that `S21' has been accidentally deleted. As NHTSA's intention was to redesignate `appendix A-1' of the current regulation as `appendix A' in the October 29, 2020, NPRM, we believe the section numbers in subpart D should be the same ( i.e. should refer to `S21 or S23'). See FR page 68552, proposed FMVSS 208, section D of appendix A.” The Alliance also commented that “[t]here appears to be an inconsistency in the proposed regulations. Comparing proposed FMVSS 208 S14.8 vs. Part 585.35 and Part 585.36, it seems that `first' in S14.8 should be `second.' ”

Agency Response: NHTSA concurs with these comments and has corrected the regulatory text as part of this final rule. This amendment is reflected in the adopted regulatory text below.

In the NPRM, the agency proposed that the compliance date for the proposed requirements be phased in such that at least 50 percent of a manufacturer's vehicles manufactured on or after the first September 1st after the publication date of the final rule would have to be certified as meeting FMVSS No. 208 when tested with the CRSs on the revised appendix A-1, and all vehicles manufactured on or after the second September 1st after the publication date of the final rule would have to be so certified.

The Alliance expressed concerns with the proposed compliance date in both its initial comment and one of its supplemental comments. In its initial comment it argued that, due to the increased weight of the CRSs being tested under the proposed update, manufacturers would have to take a series of steps to ensure compliance. The Alliance wrote:

In its supplemental comment, the Alliance requested that the lead time be extended by two years with an additional four-year phase-in to allow for manufacturers' evaluation and implementation of design changes to advanced air bag systems.

Agency Response: As discussed throughout this preamble, the CRS market has been trending toward heavier CRSs for some time. Although appendix A-1 provides manufacturers with a list of seats that NHTSA will test to determine compliance with FMVSS No. 208, the agency made it clear in the Advanced Air Bag Final Rule that manufacturers have a responsibility to ensure that their advanced airbag systems suppress deployment with all seats that are available on the CRS market. Accordingly, if manufacturers have been paying attention to the CRS market, they should have already begun the process of implementing heavier CRSs into their test programs. Furthermore, delaying compliance with the updated appendix would likely result in availability issues for the CRSs being added to the appendix given the frequent change in CRS model names, designs, or discontinuation of CRSs.

As part of NHTSA's own research, the agency acknowledges that some advanced air bag systems will likely have to undergo adjustments to comply with the updated appendix A-1. In response to commenters' compliance concerns as well as the agency's testing, the agency has decided that the phase-in of the revised appendix will be implemented in two stages. To ease the burden on manufacturers, NHTSA is amending the compliance phase-in to the following: Forty percent of all of a manufacturer's light vehicles must comply with the revised appendix by September 1, 2025, and all light vehicles must be fully compliant no later than September 1, 2026. We are also allowing optional early compliance. This change provides relief for an additional 10% of vehicles in the first part of the phase-in. However, NHTSA does not believe that an extension of the full compliance date beyond the second part of the phase-in is warranted or advisable. Among other risks, any additional delay raises the chances of inadvertently unsuppressed air bag systems in vehicles where certain heavier CRSs have been placed in the front seat. The agency encourages vehicle manufacturers to acquire sufficient inventory of the CRSs when the final rule is published to mitigate availability issues in the future.

The NPRM discussed how this rule does not amend any of the FMVSS No. 208 performance test requirements; it merely updates the list of CRSs NHTSA may use for advanced air bag compliance tests. It further explained that we cannot quantify the incremental benefits of testing with these new CRSs over those listed in the current appendix A-1, due to a lack of field performance test data, but that updating the CRSs used to assess the performance of advanced air bags addresses that potential issue by enabling manufacturers to design advanced air bag systems to factor in the features and characteristics of the CRSs used today.

With regards to the costs associated with the rule, the NPRM stated that the rule would result in a nominal cost to vehicle manufacturers for the purchase of the new CRSs. It provided a conservative cost estimate for the one additional CRS and then amortized this cost over 10 years and 16 million vehicles to get an annual per vehicle cost estimate. Essentially, based on the cost of a complete set of all the CRSs added, $3,364, it estimated the cost for the one additional CRS being added as $168.20 (1/20th of total cost). Then, based on an estimated 248 production lines and the assumption that vehicle manufacturers will purchase 10 sets of CRSs, the NPRM estimated that the total undiscounted 10-year cost to all vehicle manufacturers cumulatively would be $417,136 ($168.20 × 248 × 10). Assuming an annual production of 16 million vehicles, there would be 160 million vehicles for the same time period (16 million × 10 years). Thus, the NPRM provided an annual per-vehicle cost estimate of $0.0026 ($417,136/160 million).

These cost estimates have been updated for this final rule, given the differences between the final rule and NPRM in terms of the new CRSs being added. NHTSA observed an increased cost for most of the NPRM proposed CRSs that were not affected in the final rule. The estimated cost of a complete set of CRSs is now $4,322.40 (in 2023 dollars). Therefore, the cost for the one additional CRS being added is $216.12. The updated annual per vehicle cost is $0.0033 (($216.12 × 248 × 10)/160 million).

The agency believes this figure is an overestimate for the following reasons. NHTSA acknowledges that some manufacturers may purchase fewer of some CRSs (if their vehicles are equipped with air bag suppression systems) or more of some CRSs (if they are equipped with LRD air bags). 25 Therefore, we consider 10 a high estimate for the number of complete sets vehicle manufacturers will purchase, because, based on our experience, one set can be used to certify several vehicle models for several years.

In its August 2023 supplemental comments, the Alliance also commented on the increased burden of dealing with the aftermarket acquisition process for CRSs that are no longer widely available. Accordingly, the agency believes vehicle manufacturers would also save an unquantified amount of time and money because they will no longer need to acquire the existing appendix A-1 CRSs that are out of production through aftermarket sourcing. In addition, it is reasonable to assume vehicle manufacturers are testing their advanced air bag systems with CRSs that are not in the appendix, so it is possible that they already possess and have conducted testing with some of the proposed CRS additions, particularly the popular CRSs.

NHTSA has considered the potential impact of this final rule under Executive Order 12866, Executive Order 14094, Executive Order 13563, DOT Order 2100.6A, and the Department of Transportation's regulatory policies and procedures. This final rule is not considered to be significant under the Department of Transportation's regulatory policies and procedures. 26

This final rule makes several changes to FMVSS No. 208; specifically, the changes amend appendix A-1 of FMVSS No. 208, which lists the child restraint systems NHTSA uses in compliance testing of advanced air bag systems. Due to the changes in the CRSs proposed in the NPRM versus the CRSs being adopted as part of this final rule, the agency updated the costs in preparation for this final rule. The agency estimates that compliance with the final rule would result in a nominal total annual cost to all vehicle manufacturers cumulatively of $535,977 (over ten years) for the purchase of the new CRSs. Assuming an annual production of 16 million vehicles (with a GVWR of 8,500 lb or less), the per- vehicle cost is $0.0033 annually for the purchase of the new CRSs. More information can be found in the “Discussion of Benefits and Costs Associated with the Final Rule” section above. The minimal impacts of this final rule did not warrant the preparation of a regulatory evaluation.

In compliance with the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., NHTSA has evaluated the effects of this action on small entities. I hereby certify that this final rule will not have a significant impact on a substantial number of small entities. The final rule affects motor vehicle manufacturers, multistage manufacturers, and alterers, but the entities that qualify as small businesses would not be significantly affected by this rulemaking because they are already required to comply with the advanced air bag requirements. This final rule would not establish new requirements, but instead would only adjust and update the CRSs used in FMVSS No. 208's test procedures for advanced air bags. The small manufacturers would continue to certify their vehicles as meeting the advanced air bag requirements using the same methods and procedures they use today, only with more current CRSs.

NHTSA has examined this final rule pursuant to E.O. 13132 (64 FR 43255, August 10, 1999) and concluded that no additional consultation with States, local governments, or their representatives is mandated beyond the rulemaking process. The agency has concluded that the rulemaking would not have sufficient federalism implications to warrant consultation with State and local officials or the preparation of a federalism summary impact statement. This final rule would not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government.

NHTSA rules can have a preemptive effect in two ways. First, the National Traffic and Motor Vehicle Safety Act contains an express preemption provision stating that, if NHTSA has established a standard for an aspect of motor vehicle or motor vehicle equipment performance a State may only prescribe or continue in effect a standard for that same aspect of performance if the State standard is identical to the Federal standard. 49 U.S.C. 30103(b)(1). It is this statutory command by Congress that preempts any non-identical State legislative and administrative law addressing the same aspect of performance.

The express preemption provision described above is subject to a savings clause under which “[c]ompliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person from liability at common law.” 49 U.S.C. 30103(e). Pursuant to this provision, State common law tort causes of action against motor vehicle manufacturers that might otherwise be preempted by the express preemption provision are generally preserved.

NHTSA rules can also preempt State law is if complying with the FMVSS would render the motor vehicle manufacturers liable under State tort law. Because most NHTSA standards established by an FMVSS are minimum standards, a State common law tort cause of action that seeks to impose a higher standard on motor vehicle manufacturers will generally not be preempted. However, if and when such a conflict does exist—for example, when the standard at issue is both a minimum and a maximum standard—the State common law tort cause of action is impliedly preempted. See Geier v. American Honda Motor Co., 529 U.S. 861 (2000).

Pursuant to E.O. 13132, NHTSA has considered whether this final rule could or should preempt State common law causes of action. The agency's ability to announce its conclusion regarding the preemptive effect of one of its rules reduces the likelihood that preemption will be an issue in any subsequent tort litigation. To this end, the agency has examined the nature ( e.g., the language and structure of the regulatory text) and objectives of this final rule and finds that this final rule, like many NHTSA rules, prescribes only a minimum safety standard. Accordingly, NHTSA does not intend that this final rule preempt state tort law that would effectively impose a higher standard on motor vehicle manufacturers than that established by this final rule. Establishment of a higher standard by means of State tort law would not conflict with the minimum standard finalized in this document. Without any conflict, there could not be any implied preemption of a State common law tort cause of action.

NHTSA has analyzed this final rule for the purposes of the National Environmental Policy Act. The agency has determined that implementation of this action would not have any significant impact on the quality of the human environment.

Under the procedures established by the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et. seq.), a Federal agency must request and receive approval from the Office of Management and Budget (OMB) before it collects certain information from the public and a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. This rulemaking creates new information collection requirements for phase-in reporting and record retention requirements.

In compliance with the requirements of the PRA, NHTSA is separately publishing a notice requesting comment on NHTSA's intention to request approval for a reinstatement with modification of a previously approved information collection request. Specifically, NHTSA is requesting reinstatement of the information collection request (ICR) with OMB Control No. 2127-0535 and requesting that 49 CFR part 585 be renamed “Phase-In Reporting Requirements.” This ICR will be used to consolidate all phase-in reporting requirements that are included in 49 CFR part 585 and was chosen because the OMB Control Number is currently listed in 49 CFR part 509 as being associated with information collections contained in part 585.

NHTSA's ICR describes the nature of the information collections and their expected burden. The ICR is to request approval for two new information collections for mandatory phase-in reporting for vehicle manufacturers and related information collections.

With this final rule NHTSA is amending Federal Motor FMVSS No. 208, “Occupant crash protection,” to update the child restraint systems (CRSs) listed in appendix A-1 of the standard. NHTSA uses the CRSs in appendix A-1 to test the performance of advanced air bag suppression and low risk deployment systems in either suppressing or deploying the air bag in a low-risk manner in the presence of a CRS. The proposed amendments would ensure that the CRSs used by NHTSA to test advanced air bags are representative of the current CRS fleet and would make it easier for vehicle manufacturers and test laboratories to acquire CRSs for testing purposes.

As part of the update to FMVSS No. 208, there will be a phase-in of the requirements for testing with the new CRSs listed in appendix A-1. This phase-in of the amendment gives vehicle manufacturers reasonable time to certify their advanced air bag systems using the new CRSs. As with all phase-ins, the agency is adopting a reporting and recordkeeping requirement to facilitate the agency's enforcement of the standard by aiding NHTSA in determining whether a manufacturer has complied with the phase-in requirements during the phase-in period. These requirements are found in 49 CFR part 585, “Phase-In Reporting Requirements.” The reporting and recordkeeping requirements require that manufacturers submit an annual production report to NHTSA that includes the number of vehicles manufactured in the current production year and the production of complying vehicles and that they retain records of compliance with the phase-in requirements for five years. NHTSA estimates this collection will impact 22 manufacturers each year and will have a total annual burden of approximately 22 hours and $0.

The Unfunded Mandates Reform Act of 1995 (UMRA) requires Federal agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted annually for inflation, with base year of 1995). UMRA also requires an agency issuing an NPRM or final rule subject to the Act to select the “least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule.” This final rule would not result in a Federal mandate that will likely result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted annually for inflation, with base year of 1995).

When promulgating a regulation, agencies are required under Executive Order 12988 to make every reasonable effort to ensure that the regulation, as appropriate: (1) specifies in clear language the preemptive effect; (2) specifies in clear language the effect on existing Federal law or regulation, including all provisions repealed, circumscribed, displaced, impaired, or modified; (3) provides a clear legal standard for affected conduct rather than a general standard, while promoting simplification and burden reduction; (4) specifies in clear language the retroactive effect; (5) specifies whether administrative proceedings are to be required before parties may file suit in court; (6) explicitly or implicitly defines key terms; and (7) addresses other important issues affecting clarity and general draftsmanship of regulations.

Pursuant to this Order, NHTSA notes as follows. The preemptive effect of this final rule is discussed above. NHTSA notes further that there is no requirement that an individual submit a petition for reconsideration or pursue other administrative proceedings before they may file suit in court.

Under the National Technology Transfer and Advancement Act of 1995 (NTTAA) (Pub. L. 104-113), “all Federal agencies and departments shall use technical standards that are developed or adopted by voluntary consensus standards bodies, using such technical standards as a means to carry out policy objectives or activities determined by the agencies and departments.” Voluntary consensus standards are technical standards ( e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies, such as the International Organization for Standardization (ISO) and the Society of Automotive Engineers (SAE). The NTTAA directs this agency to provide Congress, through OMB, explanations when we decide not to use available and applicable voluntary consensus standards. There are no voluntary consensus standards developed by voluntary consensus standards bodies pertaining to this final rule.

Executive Order 12866 requires each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions:

• Have we organized the material to suit the public's needs?

• Are the requirements in the rule clearly stated?

• Does the rule contain technical language or jargon that isn't clear?

• Would a different format (grouping and order of sections, use of headings, paragraphing) make the rule easier to understand?

• Would more (but shorter) sections be better?

• Could we improve clarity by adding tables, lists, or diagrams?

• What else could we do to make the rule easier to understand?

NHTSA has considered these questions and attempted to use plain language in promulgating this final rule. Please inform the agency if you can suggest how NHTSA can improve its use of plain language.

The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading at the beginning of this notice may be used to find this action in the Unified Agenda.

In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its decision-making process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.transportation.gov/privacy. Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477).

For reasons stated in the preamble, NHTSA amends 49 CFR parts 571 and 585 as follows:

On May 10, 2024, NMFS published a final rule implementing fishing periods ( i.e. season dates) and fishing period limits ( i.e. catch limits), by vessel size class, for the IPHC Area 2A Pacific halibut non-tribal directed commercial fishery that operates south of Point Chehalis, WA (lat. 46°53.30′ N) (89 FR 40417). The Area 2A non-Tribal directed commercial fishery allocation is 249,338 pounds (113 mt), net weight ( i.e., the weight of Pacific halibut that is without gills and entrails, head-off, washed, and without ice and slime) (89 FR 19275, March 18, 2024).

The initial fishing periods occurred on June 25-27 and July 9-11, 2024, with fishing period limits ranging from 1,800 pounds to 4,500 pounds (0.816 mt to 2.041 mt), dressed weight, varied by vessel size class. A third fishing period occurred on August 6-8, 2024, with a fishing period limit of 1,400 pounds (0.64 mt), dressed weight, for all vessel size classes. Landings information to date indicates that sufficient allocation remains to warrant an additional fishing period. Approximately 209,204 pounds (94.9 mt), net weight, have been harvested of the 249,338-pound (113 mt) allocation (84 percent), leaving 40,134 pounds (18.2 mt) remaining (16 percent).

NMFS is adopting an additional fishing period not previously implemented in the final rule on May 10, 2024 (89 FR 40417), in accordance with 50 CFR 300.63(e)(1)(iii). Fishing period limits implemented through inseason action are equal across vessel size classes and are based on the allocation estimated to be remaining and the projected participation and catch rates in this additional fishing period.

NMFS has determined the following inseason action is necessary to meet the management objective of attaining the allocation, is not anticipated to risk exceeding the allocation, and is consistent with the inseason management provisions allowing for additional fishing periods.

This inseason action implements an additional fishing period, beginning August 27, 2024 at 8 a.m. and ending on August 29, 2024 at 6 p.m. This inseason action also implements a fishing period catch limit of 1,400 pounds (0.64 mt) per vessel, dressed weight (head-on, with ice and slime), for all vessel size classes.

Notice of this additional fishing period and fishing period limit will also be announced 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(e)(1)(iii), 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. The California, Oregon, and Washington Departments of Fish and Wildlife provided estimated harvest data to NMFS inseason. As of August 14, 2024, the Area 2A non-Tribal directed commercial fishery had caught only an estimated 84 percent of the fishery allocation. NMFS uses current fishery harvest and participation estimates, and fishing period catches from prior years, to determine if additional fishing periods are necessary to reach the allocation, and to set fishing period limits for those additional fishing periods. Given that harvest in the first three fishing periods is estimated to be well below the allocation, a fourth fishing period is considered necessary to maximize commercial fishing opportunity to attain the allocation. This action should be implemented as soon as possible for fishery participants to plan for the additional fishing. This fishery has historically had 2 weeks between fishing periods, or as close to 2 weeks between them as is practicable. The fishery may close no later than December 7, 2024 (89 FR 19275, March 18, 2024). As such, implementing this action through proposed and final rulemaking would limit the benefit this action would provide to fishery participants. Without implementation of an additional fishing period, the fishery allocation is unlikely to be reached, limiting economic benefits to the participants and not meeting the goals of the Catch Sharing Plan. It is necessary that this action be implemented in a timely manner so that planning for the additional fishing period can take place, and for business decision making by the regulated public impacted by this action, which includes commercial fishing operations and associated port businesses, among others. To ensure the regulated public is fully aware of this action, notice of this regulatory action will also be provided to fishery participants through a telephone hotline, and via email news release. 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(e)(1)(iii) and in the final rule (89 FR 40417, May 10, 2024).

For the reasons discussed above, there is also good cause under 5 U.S.C. 553(d)(3) to establish an effective date less than 30 days after date of publication, as a delay in effectiveness of this action would constrain fishing opportunity and be inconsistent with the goals of the 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 Area 2A Pacific halibut non-tribal directed commercial fishery allocation. NMFS regulations allow the Regional Administrator to add fishing periods and set fishing period limits inseason, provided that the action allows allocation objectives to be met and will not result in exceeding the catch limit for the fishery. NMFS recently received information on the progress of landings in the non-Tribal directed commercial fishery, indicating an additional fishing period with fishing period limits should be implemented in the fishery to ensure optimal and sustainable harvest of the allocation. As stated above, it is in the public interest that this action is not delayed, because a delay in the effectiveness of this additional fishing period would not allow the allocation objectives of the Area 2A Pacific halibut non-Tribal directed commercial fishery to be met.