Section 104(b)(1) of the CPSIA requires the Commission to assess the effectiveness of voluntary standards for durable infant or toddler products and adopt mandatory standards for these products. 15 U.S.C. 2056a(b)(1). The mandatory standard must be “substantially the same as” the voluntary standard, or it may be “more stringent than” the voluntary standard, if the Commission determines that more stringent requirements would further reduce the risk of injury associated with the product. Id.

Section 104(b)(4)(B) of the CPSIA specifies the process for updating the Commission's rules when a voluntary standards organization revises a standard that the Commission incorporated by reference under section 104(b)(1). First, the voluntary standards organization must notify the Commission of the revision. Once the Commission receives this notification, the Commission may reject or accept the revised standard. The Commission may reject the revised standard by notifying the voluntary standards organization, within 90 days of receiving notice of the revision, that it has determined that the revised standard does not improve the safety of the consumer product and that it is retaining the existing standard. If the Commission does not take this action to reject the revised standard, the revised voluntary standard will be considered a consumer product safety standard issued under section 9 of the Consumer Product Safety Act (CPSA; 15 U.S.C. 2058), effective 180 days after the Commission received notification of the revision or on a later date specified by the Commission in the Federal Register . 15 U.S.C. 2056a(b)(4)(B).

Under section 104(b)(1) of the CPSIA, the Commission published a mandatory standard for infant bath seats, codified in 16 CFR part 1215, “Safety Standard for Infant Bath Seats.” The rule incorporated by reference the then-current voluntary standard, ASTM F1967-08a, Standard Consumer Safety Specification for Infant Bath Seats, with modifications to make the standard more stringent. 75 FR 31691 (June 4, 2010). ASTM F1967 applies to infant bath seats, which it describes as products used in a bath tub, sink, or similar bathing enclosure and that provide support, at a minimum, to the front and back of a seated infant during bathing by a caregiver. The mandatory standard includes performance requirements and test methods, as well as requirements for warning labels and instructions, to address hazards to children.

The voluntary standard has been revised five times since 2010, and the Commission updated part 1215 upon each notice of revision from ASTM: 2012 (77 FR 45242 (July 31, 2012)), 2013 (78 FR 73692 (Dec. 9, 2013)), and 2019 (84 FR 49435 (Sep. 20, 2019)). 1 ASTM F1967-19 is the current mandatory standard incorporated by reference in part 1215.

Most recently, in July 2024, ASTM published another revision to the voluntary standard for infant bath seats, approving ASTM F1967-24. On July 8, 2024, ASTM notified CPSC of the revision. On July 18, 2024, the Commission published a notice of availability of the revised voluntary standard in the Federal Register and sought comments on the effect of the revisions. 89 FR 58303. CPSC did not receive any comments.

As discussed below, based on staff's review of ASTM F1967-24, the Commission will allow the revised voluntary standard to become the mandatory standard for infant bath seats because the revised requirements in the voluntary standard improve the safety of infant bath seats overall, and none of the revised requirements reduce safety. 2 Accordingly, by operation of law under section 104(b)(4)(B) of the CPSIA, ASTM F1967-24 will become the mandatory consumer product safety standard for infant bath seats on January 4, 2025. 15 U.S.C. 2056a(b)(4)(B). This direct final rule updates part 1215 to incorporate by reference the revised voluntary standard, ASTM F1967-24.

ASTM F1967-24 includes a few substantive additions and revisions, as well as clarifications and editorial revisions.

ASTM F1967-24 contains substantive changes to testing requirements in section 7.4.1.2 that clarify the test surface used in the stability test procedure. The revisions clarify that bath seats intended to contact the bottom surface of the bath tub must be tested on both Test Surface #1 and Test Surface #2. As defined in the voluntary standard, Test Surface #1 is any area on the bottom surface of the bath tub where safety tread strips  3 are applied; and Test Surface #2 is any area on the bottom surface of the bath tub where safety tread slips are not applied. In general, Test Surface #1 is considered the most onerous testing surface for products utilizing suction cups on the bottom surface for stability because safety tread strips make it more difficult for suction cups to adhere to the surface.

ASTM F1967-19 states that the stability test must be conducted using all relevant surfaces and is not clear that all bath seats that come into contact with the bottom surface of the bath tub must be tested on both Test Surface #1 and Test Surface #2. The language in ASTM F1967-19 implies that the choice of testing surface(s) may be at the discretion of the manufacturer. For example, if the manufacturer's use instructions for a bath seat state “only for use on smooth surfaces,” application of ASTM F1967-19 could be interpreted so that the bath seat should only be evaluated on Testing Surface #2. Allowing manufacturers to decide which testing surface(s) the product should be evaluated on may lead to some bath seats only being tested on the one surface on which they perform best, while ignoring how the product performs on a more onerous testing surface. Accordingly, requiring all bath seats that come into contact with the bottom surface of the bath tub to use both test surfaces will promote consistency across different test labs and improve the safety of infant bath seats.

In addition, ASTM F1967-24 contains substantive changes to testing requirements in section 7.4.1.1 that relate to specifications for the test platform ( i.e., the bath tub on which the infant bath seat is placed for the stability test). ASTM F1967-24 now requires the test platform to be “alcove-style” and no longer requires all surfaces of the tub to be “smooth” or that the side ledge of the tub must have any certain uniform thickness. As indicated above, a smooth surface generally provides the most favorable testing surface for products utilizing suction cups on the bottom surface for stability because rough surfaces make it more difficult for suction cups to adhere to the surface. Because section 7.4.1.2 in ASTM F1967-24 clarifies that testing is necessary on both Test Surface #1 and Test Surface #2, removing “smooth” from the bath tub description should not impact test results. Also, ASTM F1967-24 updates and removes certain dimension requirements of the test platform in Figure 3 and removes Figures 4 and 5, which had illustrated the side sectional views of the test platform.

ASTM made these revisions because of the current unavailability of the bath tub described and specified in ASTM F1967-19. Staff's market research identified the most common style of bath tub as an “Alcove” tub, meaning a rectangular tub that is intended to be surrounded by tile or similar waterproof material walls, and a textured or grit floor surface. Bath tubs currently available on the market typically have a textured or grit floor surface to provide slip resistance to the floor; ASTM members and staff report that it is challenging to find a bath tub with a smooth surface. In addition, the most common size of bath tubs available is 60 inches long by 30 inches wide. A similar overall exterior length and width could be discerned from Figure 3 in ASTM F1967-19. However, the bath tub make, and model shown in Figure 3, including the side dimensions in Figures 4 and 5 of ASTM F1967-19, is no longer available, and many of the dimensions are not relevant to testing bath seats available on the market. The revised Figure 3 dimensions in ASTM F1967-24, making clear the overall 60 x 30-inch exterior length and width, reflect current market availability and remove unnecessary dimensions from the test platform. The removal of Figures 4 and 5 in ASTM F1967-24 that display bath tub thickness dimensions is consistent with these revisions to Figure 3 and description of the test platform. However, these changes are neutral to safety because they do not impact the outcome of performance testing.

The proposed dimension and description changes will still allow labs to use the bath tub described by ASTM F1967-19 for infant bath seat evaluations and will not cause any procedural or equipment changes. These changes are being implemented because the bath tub described by the standard in ASTM F1967-19 no longer exists on the market, which would prevent future labs from meeting the equipment requirements to become International Organization for Standardization (ISO) accredited and CPSC-accepted to perform infant bath seat testing in accordance with part 1215. Because the changes to the test platform will not impact the testing procedure of currently approved labs and will not affect test results for bath seats currently available on the market, CPSC considers these changes to be neutral to safety.

ASTM F1967-24 also includes several minor additions and revisions that are editorial and do not alter any substantive requirements in the standard. The revised standard updates certain contact information as well as section and figure numbers to reflect revised sections and figures. ASTM also updated the Rationale section of the standard to provide explanatory information about the 2024 standard revisions. Because these revisions do not change any substantive testing or labeling requirements, they are neutral regarding the safety of infant bath seats.

Section 1215.2 of the direct final rule incorporates by reference ASTM F1967-24. The Office of the Federal Register (OFR) has regulations regarding incorporation by reference. 1 CFR part 51. Under these regulations, agencies must discuss, in the preamble to a final rule, ways in which the material the agency incorporates by reference is reasonably available to interested parties and how interested parties can obtain the material. In addition, the preamble to the final rule must summarize the material. 1 CFR 51.5(b).

In accordance with the OFR regulations, section II of this preamble summarizes the revisions to ASTM F1967-24 that the Commission incorporates by reference into 16 CFR part 1215. The standard is reasonably available to interested parties in several ways. Until the direct final rule takes effect, a read-only copy of ASTM F1967-24 is available for viewing on ASTM's website at: www.astm.org/CPSC.htm. Once the rule takes effect, a read-only copy of the standard will be available for viewing on the ASTM website at: www.astm.org/READINGLIBRARY/. Additionally, interested parties can purchase a copy of ASTM F1967-24 from ASTM International, 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959; phone: (610) 832-9500; www.astm.org. Finally, interested parties can schedule an appointment to inspect a copy of the standard at CPSC's Office of the Secretary, U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814; telephone: (301) 504-7479; email: cpsc-os@cpsc.gov.

Section 14(a) of the CPSA (15 U.S.C. 2063(a)) requires manufacturers, including importers, of products subject to a consumer product safety rule under the CPSA, or to a similar rule, ban, standard, or regulation under any other act enforced by the Commission, to certify that the products comply with all applicable CPSC requirements. 15 U.S.C. 2063(a). Such certification must be based on a test of each product, or on a reasonable testing program, or, for children's products, on tests of a sufficient number of samples by a CPSC-accepted third party conformity assessment body accredited to test according to the applicable requirements. As noted, standards issued under section 104(b)(1)(B) of the CPSIA are “consumer product safety standards.” Thus, they are subject to the testing and certification requirements of section 14 of the CPSA.

Because infant bath seats are children's products, a CPSC-accepted third party conformity assessment body must test samples of the products. Products subject to part 1215 also must comply with all other applicable CPSC requirements, such as the lead content requirements in section 101 of the CPSIA;  4 the phthalates prohibitions in section 108 of the CPSIA  5 and 16 CFR part 1307; the tracking label requirements in section 14(a)(5) of the CPSA;  6 and the consumer registration form requirements in 16 CFR part 1130. ASTM F1967-24 makes no changes that would impact any of these existing requirements.

In accordance with section 14(a)(3)(B)(vi) of the CPSA, the Commission previously published a notice of requirements (NOR) for accreditation of third party conformity assessment bodies (third party labs) for testing infant bath seats. 75 FR 31688 (June 4, 2010). The NOR provided the criteria and process for CPSC to accept accreditation of third party conformity assessment bodies for testing infant bath seats to 16 CFR part 1215. The NORs for all mandatory standards for durable infant or toddler products are listed in the Commission's rule, “Requirements Pertaining to Third Party Conformity Assessment Bodies,” codified in 16 CFR part 1112. The NOR for accreditation of third party labs for testing infant bath seats is codified at 16 CFR 1112.15(b)(2).

As previously mentioned in this preamble to the direct final rule, the changes to the test platform will not change the way that third party labs test infant bath seats for compliance with the safety standard for infant bath seats. The dimension and description changes to the test platform will still allow labs to use the bath tub described by ASTM F1967-19 for infant bath seat evaluations and will not cause any procedural or equipment changes. Testing laboratories that have demonstrated competence for testing in accordance with ASTM F1967-19 will have the competence to test in accordance with the revised standard ASTM F1967-24. Therefore, the Commission considers the existing CPSC-accepted laboratories for testing to ASTM F1967-19 to be capable of testing to ASTM F1967-24 as well. Accordingly, the existing NOR for this standard will remain in place, and CPSC-accepted third party conformity assessment bodies are expected to update the scope of the testing laboratories' accreditation to reflect the revised standard in the normal course of renewing their accreditation.

On July 18, 2024, the Commission provided notice in the Federal Register of the 2024 revision to ASTM F1967 and requested comment on whether the revision improves the safety of infant bath seats covered by the standard. 89 FR 58303. CPSC did not receive any comments. Now, the Commission is issuing this rule as a direct final rule. Although the Administrative Procedure Act (APA; 5 U.S.C. 551-559) generally requires agencies to provide notice of a rule and an opportunity for interested parties to comment on it, section 553 of the APA provides an exception when the agency “for good cause finds” that notice and comment are “impracticable, unnecessary, or contrary to the public interest.” Id. 553(b)(B). The Commission concludes that when it updates a reference to an ASTM standard that the Commission incorporated by reference under section 104(b) of the CPSIA, notice and comment are not necessary.

The purpose of this direct final rule is to update the reference in the Code of Federal Regulations (CFR) so that it reflects the version of the standard that takes effect by statute. This rule updates the reference in the CFR, but under the terms of the CPSIA, ASTM F1967-24 would take effect as the new CPSC standard for infant bath seats in the absence of any action by the Commission. Thus, public comments would not lead to substantive changes to the standard or to the effect of the revised standard as a consumer product safety rule under section 104(b) of the CPSIA. Under these circumstances, notice and comment are unnecessary.

In Recommendation 95-4, the Administrative Conference of the United States (ACUS) endorses direct final rulemaking as an appropriate procedure to expedite rules that are noncontroversial and that are not expected to generate significant adverse comments. See 60 FR 43108 (Aug. 18, 1995). ACUS recommends that agencies use the direct final rule process when they act under the “unnecessary” prong of the good cause exemption in 5 U.S.C. 553(b)(B). Consistent with the ACUS recommendation, the Commission is publishing this rule as a direct final rule, because CPSC does not expect any significant adverse comments. CPSC did not receive any adverse comments about the requirements in this update in response to the Notice of Availability published on July 18, 2024.

Unless CPSC receives a significant adverse comment within 30 days of this notification, the rule will become effective on January 4, 2025. In accordance with ACUS's recommendation, the Commission considers a significant adverse comment to be “one where the commenter explains why the rule would be inappropriate,” including an assertion that undermines “the rule's underlying premise or approach,” or a showing that the rule “would be ineffective or unacceptable without change.” 60 FR 43108, 43111. As noted, this rule updates a reference in the CFR to reflect a change that occurs by statute.

If the Commission receives a significant adverse comment, the Commission will withdraw this direct final rule. Depending on the comment and other circumstances, the Commission may then incorporate the adverse comment into a subsequent direct final rule or publish a notice of proposed rulemaking, providing an opportunity for public comment.

The Regulatory Flexibility Act (RFA; 5 U.S.C. 601-612) generally requires agencies to review proposed and final rules for their potential economic impact on small entities, including small businesses, and prepare regulatory flexibility analyses. 5 U.S.C. 603, 604. The RFA applies to any rule that is subject to notice and comment procedures under section 553 of the APA. Id. As discussed in section VI of this preamble, the Commission has determined that further notice and the opportunity to comment are unnecessary for this rule. Therefore, the RFA does not apply. CPSC also notes the limited nature of this document, which merely updates the incorporation by reference to reflect the mandatory CPSC standard that takes effect under section 104 of the CPSIA.

The current mandatory standard includes requirements for marking, labeling, and instructional literature that constitute a “collection of information,” as defined in the Paperwork Reduction Act (PRA; 44 U.S.C. 3501-3521). The Commission took the steps required by the PRA for information collections when it promulgated 16 CFR part 1215, and the marking, labeling, and instructional literature for infant bath seats are currently approved under OMB Control Number 3041-0159. The revision does not affect the information collection requirements or approval related to the standard.

The Commission's regulations provide for a categorical exclusion from any requirement to prepare an environmental assessment or an environmental impact statement where they “have little or no potential for affecting the human environment.” 16 CFR 1021.5(c). This rule falls within the categorical exclusion, so no environmental assessment or environmental impact statement is required.

Section 26(a) of the CPSA provides that where a consumer product safety standard is in effect and applies to a product, no state or political subdivision of a state may either establish or continue in effect a requirement dealing with the same risk of injury unless the state requirement is identical to the Federal standard. 15 U.S.C. 2075(a). Section 26(c) of the CPSA also provides that states or political subdivisions of states may apply to CPSC for an exemption from this preemption under certain circumstances. Section 104(b) of the CPSIA deems rules issued under that provision “consumer product safety standards.” Therefore, once a rule issued under section 104 of the CPSIA takes effect, it will preempt in accordance with section 26(a) of the CPSA.

Under the procedure set forth in section 104(b)(4)(B) of the CPSIA, when a voluntary standards organization revises a standard that the Commission adopted as a mandatory standard, the revision becomes the CPSC standard 180 days after notification to the Commission, unless the Commission determines that the revision does not improve the safety of the product, or the Commission sets a later date in the Federal Register . 15 U.S.C. 2056a(b)(4)(B). The Commission is taking neither of those actions with respect to the revised standard for infant bath seats. Therefore, ASTM F1967-24 automatically will take effect as the new mandatory standard for infant bath seats on January 4, 2025, 180 days after the Commission received notice of the revision. As a direct final rule, unless the Commission receives a significant adverse comment within 30 days of this document, the rule will become effective on January 4, 2025.

The Congressional Review Act (CRA; 5 U.S.C. 801-808) states that before a rule may take effect, the agency issuing the rule must submit the rule, and certain related information, to each House of Congress and the Comptroller General. 5 U.S.C. 801(a)(1). The CRA submission must indicate whether the rule is a “major rule.” The CRA states that the Office of Information and Regulatory Affairs (OIRA) determines whether a rule qualifies as a “major rule.”

Pursuant to the CRA, OIRA has determined that this rule does not qualify as a “major rule,” as defined in 5 U.S.C. 804(2). To comply with the CRA, CPSC will submit the required information to each House of Congress and the Comptroller General.

For the reasons discussed in the preamble, the Commission amends 16 CFR chapter II as follows:

I. Overview

On May 20, 2024, OSHA published a final rule updating and revising its Hazard Communication Standard (HCS) (89 FR 44144). The final rule became effective on July 19, 2024. This document corrects several minor errors in the final rule. The errors addressed by this correction occur in § 1910.1200, paragraphs (d) and (f) of the regulatory text and in appendices A, B, and C. These corrections reflect the agency's intent for the provisions of the final rule as explained in the preamble to the final rule. Some of these corrections are explained in the following discussion, and the table provided at the end of this section summarizes all the corrections included in this notice.

Two of the corrections are to the regulatory text. First, OSHA inadvertently mis-numbered portions of paragraph (d) in the final rule, resulting in erroneous cross-references in other areas of the standard ( e.g., paragraph (f)(1) and appendix D, table D.-1). As shown in OSHA's references to paragraph (d) in the preamble to the final rule, the final economic analysis, and cross references in the regulatory text and appendix D, OSHA intended paragraphs (d)(1)(i)(A) and (d)(1)(i)(B) to be designated (d)(1)(i) and (d)(1)(ii), respectively (see, e.g., 89 FR 44278). To ensure that the regulatory text is clear and consistent with the agency's intent, OSHA is rearranging and renumbering paragraph (d)(1) by incorporating the text currently designated as (d)(1)(ii) into (d)(1) and renumbering the provisions currently designated as (d)(1)(i)(A) and (d)(1)(i)(B) to (d)(1)(i) and (d)(1)(ii), respectively.

Second, a phrase regarding transmission of labels by electronic or other technological means was inadvertently included in paragraph (f)(11). As OSHA's discussion in the preamble of the final rule shows (89 FR 44293), the agency did not intend to include this phrase in paragraph (f)(11) and is therefore removing it.

The remainder of the errors corrected in this document are in the appendices. For instance, in appendix B, the contents of table B.13.1 were inadvertently placed as table B.12.1. OSHA only intended to change table B.12.1 as described in the preamble to the final rule (89 FR 44236). Therefore, the agency is correcting the text of table B.12.1 to align with what it proposed and stated it was finalizing in the preamble.

Additionally, OSHA inadvertently inserted hazard statements for aerosols instead of hazard statements for chemical under pressure in appendix C, table C.4.16. Therefore, OSHA is updating the label elements in C.4.16, Chemical Under Pressure, to conform with the GHS, Rev. 8, consistent with the agency's discussion of its intent to add the hazard communication elements for chemical under pressure (under the aerosol hazard class) in the summary and explanation to the final rule (89 FR 44323-44324). OSHA is also removing extra slashes that were inadvertently inserted in the prevention column of that table.

The following table contains a summary of the corrections being made to the Hazard Communication Standard. The changes are listed by the paragraph or appendix they are located in.

OSHA has determined that these corrections are not subject to the procedures for public notice and comment specified in section 4 of the Administrative Procedures Act (5 U.S.C. 553) or section 6(b) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 655(b)). This rulemaking only corrects errors of a minor, mainly typographical nature and makes a few technical amendments that do not affect or change any existing rights or obligations, and no stakeholder is likely to object to these changes. Therefore, OSHA has determined that there is good cause that public notice and comment are unnecessary within the meaning of 5 U.S.C. 553(b)(4)(B), 29 U.S.C. 655(b), and 29 CFR 1911.5. For the same reasons, the Agency finds good cause under 5 U.S.C. 553(d)(3) to make the amendment effective upon publication.

Accordingly, 29 CFR part 1910 is corrected by making the following correcting amendments:

Douglas L. Parker, Assistant Secretary of Labor for Occupational Safety and Health, authorized the preparation of this document. It is issued under the authority of sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); 5 U.S.C. 553; Section 304, Clean Air Act Amendments of 1990 (Pub. L. 101-549, reprinted at 29 U.S.C.A. 655 Note); Section 41, Longshore and Harbor Workers' Compensation Act (33 U.S.C. 941); Section 107, Contract Work Hours and Safety Standards Act (40 U.S.C. 3704); Section 1031, Housing and Community Development Act of 1992 (42 U.S.C. 4853); Section 126, Superfund Amendments and Reauthorization Act of 1986, as amended (reprinted at 29 U.S.C.A. 655 Note); Secretary of Labor's Order No. 8-2020 (85 FR 58393-94); and 29 CFR part 1911.

On June 30, 2022, NHTSA published a final rule (side impact final rule) (87 FR 39234) amending FMVSS No. 213, “Child restraint systems,” to establish side impact performance requirements for CRSs designed to seat children weighing up to 18.1 kilograms (kg) (40 pounds (lbs)), or for children in a height range that includes heights up to 1100 millimeters (43.3 inches). The side impact performance requirements were established in the new FMVSS No. 213a, “Child restraint systems—side impact protection,” which is referenced by Standard No. 213.

On December 5, 2023, NHTSA published a final rule (frontal test upgrade final rule) (88 FR 84514) amending FMVSS No. 213 and adding FMVSS No. 213b, “Child restraint systems.” The amendments to FMVSS No. 213 modernize the standard by updating the CRS owner registration program, labeling requirements instructing consumers on correct use of child restraints, requirements for add-on school bus-specific child restraint systems, and provisions for NHTSA's use of test dummies in NHTSA compliance tests. The establishment of FMVSS No. 213b will update the standard seat assembly on which NHTSA tests child restraint systems for compliance with frontal crash performance requirements.

NHTSA received petitions for reconsideration of the side impact final rule, 1 from Columbus Trading-Partners USA, Inc. (Cybex products distributor) and Evenflo (Goodbaby International subsidiary) Inc. (Evenflo). NHTSA received petitions for reconsideration  2 of the frontal test upgrade final rule from Juvenile Products Manufacturers Association (JPMA) and Evenflo.

The petitioners to the side impact final rule requested clarifications on dummy positioning test procedures for shield-type CRSs and on test procedures for CRSs that have adjustable and configurable technologies for side impact. The petitioners also requested minor corrections to the regulatory text of the adopted standard. NHTSA is granting the petitions to incorporate a dummy positioning procedure for shield-type CRSs, correct inconsistencies in the side impact seat assembly mounting angle tolerances in the regulatory text and figures, and correct inconsistent units between the standards. NHTSA is denying the remaining requests from the two petitioners.

The petitioners to the frontal test upgrade final rule requested the following: (1) consolidations of the compliance dates  3 of FMVSS Nos. 213, 213a and 213b, (2) removal of tests with CRS installation using Type 1 seat belt or an earlier sunset date for testing CRSs installed with the Type 1 seat belt, (3) minor corrections to the regulatory text of the adopted standards, and, (4) guidance on the new requirements for the registration card. NHTSA is partially granting the request to align the compliance dates and granting the request to remove Type 1 seat belt testing. NHTSA is also making minor corrections to the regulatory text identified by the petitioners. The agency is denying the request for rulemaking to provide guidance on the new registration card requirements.

Cybex requested NHTSA clarify how fixed, adjustable, and configurable side impact technologies will be tested in future annual compliance test programs. Cybex explained that previous NHTSA interpretations have deemed “belt tensioning bars, additional straps and support legs” as supplemental devices. Cybex further noted that supplemental devices are not used during compliance testing per the specifications in S6.1.2 of FMVSS No. 213 that no supplemental devices be used to install CRSs.

Cybex explained that neither the dynamic test procedure nor past interpretations Cybex reviewed provide guidance on other aspects of adjusting or use of a child restraint beyond S6.1.2. This section of the standard requires CRS installation in accordance with manufacturer's instructions provided with the CRS.

Cybex asked NHTSA for clarification on (1) whether an adjustment specified in the manufacturer's instruction is allowed to be made prior to or after securing the CRS to the side impact seat assembly (SISA), and (2) whether an adjustment of a technology that is part of the CRS is allowed to be made prior to testing according to this supplemental device requirement.

Agency Response: NHTSA is denying Cybex's petition to provide informal guidance on the testing procedure outlined in FMVSS No. 213a. Under 49 CFR 553.35, petitions for reconsideration must contain a brief statement of the complaint and an explanation why compliance with the rule is not practicable, is unreasonable, or is not in the public interest. We do not believe that Cybex has met its burden of explaining why the FMVSS No. 213a test procedure is not practicable, is unreasonable, or is not in the public interest. Instead, Cybex's petition simply requests guidance on how NHTSA would test CRSs under FMVSS No. 213a. NHTSA does not provide informal guidance in responses to petitions for reconsideration.

Although we will not be providing guidance on how FMVSS No. 213a's test procedures apply to the adjustable side impact technology discussed by Cybex, we do think this issue is worth addressing. Instead of addressing it here in the form of guidance, we plan to initiate a rulemaking on this issue. FMVSS No. 213a is new requirement that does not take effect until June of 2025. Accordingly, when NHTSA published its Notice of Proposed Rulemaking (NPRM) in 2014 proposing side impact protection requirements for child restraint systems, the agency could not predict how child restraint manufacturers would choose to comply with the standard. Additionally, no commenters discussed this technology during the NPRM stage. NHTSA conducted rigorous testing to ensure that the requirements of FMVSS No. 213a were practicable, but as is the case with many of our standards, manufacturers innovate to meet the requirements of our standards. This is the case with the adjustable side impact technology Cybex discusses in its petition for reconsideration. Accordingly, the agency could not have considered how to test with this technology since it did not exist when the requirements were proposed and how popular these designs would become.

Because the agency has limited test experience with adjustable side impact technology, we cannot yet speak to any safety benefits associated with it. The agency plans to continue its research and testing to determine if and how FMVSS No. 213a should be amended to accommodate for this technology. The agency also plans to consider potential misuse and how restraints with this technology perform under the test procedures outlined in FMVSS No. 213a with and without the technology deployed.

For the reasons discussed above, NHTSA is denying Cybex's request to provide guidance on how FMVSS No. 213a's test procedures apply to deployable side impact technology.

Cybex noted that the current FMVSS No. 213 allows the use of a forward restraining surface ( e.g., shield) in lieu of a harness. However, Cybex states the side impact final rule did not consider CRSs that use a forward restraining surface. Cybex argued that the 25-degree dummy arm positioning required in the new FMVSS No. 213a standard could not be met in forward facing CRSs with restraining surfaces. Accordingly, Cybex requested clarification regarding test dummy arm positioning for CRSs with restraining surfaces. Cybex also asked whether placing the dummy's arm above the forward restraining surface would be considered as “inhibiting the torso or head movement.” Cybex noted that if this interaction is considered as “inhibiting the torso or head movement,” it requested clarification on the allowable limb position. 4

Agency Response: NHTSA is granting Cybex's request to specify arm placement in FMVSS No. 213a testing for shield-type CRSs where the arm cannot be placed at a 25-degree angle. As background, FMVSS No. 213a specifies a procedure in S9.2(d) and S9.3(d) to position the Q3s dummy's arm in CRSs that can be used forward-facing and/or rear-facing. The arm is rotated downwards in the plane parallel to the dummy's midsagittal plane until the arm engages the Q3s detent that positions the arm at a 25-degree angle with respect to the thorax. However, some CRS designs equipped with a fixed or movable surface  5 that restrain the dummy  6 may prevent the arm from engaging the detent to position the arm at a 25-degree angle with respect to the thorax.

Section 10.2.2(d) of FMVSS Nos. 213 and 213b specifies positioning the arm of dummies by rotating the limb downwards in the plane parallel to the dummy's midsagittal plane until the limb contacts a surface of the CRS or the standard seat assembly. This test procedure applies to all the dummies used in FMVSS Nos. 213 and 213b. The procedure provides for consistent positioning of the dummy's arms for all CRSs, including the ones equipped with a fixed or movable surface that restrain the child in FMVSS No. 213.

In response to Cybex's petition, NHTSA is specifying use of the FMVSS Nos. 213 and 213b arm positioning procedure for the Q3s dummy in FMVSS No. 213a for those CRSs equipped with a fixed or movable surface that restrain the child and in which the specified 25-degree arm angle cannot be reached. The 25-degree angle is specified for side impact testing, positioning the arm to expose the thorax to directly contact the intruding door or CRS side structure. This arm positioning procedure produces a more repeatable test. Utilizing the FMVSS Nos. 213 and 213b arm positioning procedure for positioning the Q3s dummy in FMVSS No. 213a will still achieve NHTSA's goal to position the arm in a manner that exposes the thorax so that it directly contacts the intruding door or CRS side structure during 213a testing. An arm positioned at a 25-degree angle or (slightly) higher would likely not be considered to “inhibit the torso or head movement.”  7

FMVSS No. 213a adopted requirements to attach the SISA to the sled test platform so the Seat Orientation Reference Line (SORL)  8 of the seat is at a 10-degree angle counter-clockwise from the perpendicular to the travel direction of the test platform. Evenflo noted that the regulatory text has a discrepancy in the angle tolerance specified in S6.1.1(a)(1) and Figure 2A. Section 6.1.1(a)(1) specifies the SISA is mounted on a dynamic test platform so that the SORL is 10 ±0.1 degrees from the perpendicular direction of the test platform travel. Figure 2A specifies this angle to be 10 ±1 degrees. Evenflo requested clarification on the discrepancy between the text and the drawing.

Agency Response: The ±0.1 tolerance of the SISA mounting angle specified in S6.1.1(a)(1) is incorrect. NHTSA is granting Evenflo's petition to correct the discrepancy in the mounting angle tolerance between S6.1.1(a)(1) and Figure 2A. NHTSA is specifying the correct tolerance in S6.1.1(a)(1) so that it indicates an angle of 10 ±1 degrees, making it consistent with Figure 2A.

Evenflo requested NHTSA specify the protrusion dimensions requirements existing in both FMVSS No. 213 and 213a in the same units. Evenflo noted that FMVSS No. 213 uses inches while FMVSS No. 213a uses millimeters. Evenflo argued that this discrepancy can lead to confusion in application and interpretation of the standard.

Agency Response: NHTSA agrees that the units for the same protrusion dimension requirements should be the same in FMVSS Nos. 213 (S5.1.1(a) and S5.2.4), 213a (S5.1.1(a) and S5.1.4) and 213b (S5.1.1(a) and S5.2.4). NHTSA is granting this petition and will change the units of FMVSS No. 213 and 213b to millimeters to be consistent with FMVSS No. 213a.

Evenflo sought clarification regarding the phrase “at NHTSA's option” in the FMVSS No. 213b Dynamic Test Procedure section (S6.1.2). Evenflo explained that the section is followed by test procedures with each of the attachment methods. Evenflo added that none of the attachments are optional for a manufacturer when it is certifying compliance with FMVSS Nos. 213 and 213a. Evenflo argued that if “at NHTSA's option” refers to test options available to NHTSA as part of its annual test compliance program, then the language is more appropriate for test procedures and not in the regulation.

Agency Response: NHTSA is denying Evenflo's petition to remove the phrase “at NHTSA's option” from the regulatory text. This phrase is included to make clear that NHTSA may conduct the compliance test with a CRS attached in any or all of its attachment modes. NHTSA notes that the agency's safety standards specify the test conditions and procedures that the agency will use to evaluate the performance of the vehicle or equipment (such as CRSs) being tested for compliance to the safety standard. While manufacturers are required to certify their products meet the requirements of FMVSS No. 213 when tested in accordance with the standard and exercise due care in doing so, they are not specifically required to test their CRSs the way NHTSA tests child restraints in a compliance test.

Evenflo questioned whether the requirement in S5.1.1 (c) that does not allow the angle between the system's back support for the child and the system's seating surface to be less than 45 degrees at the completion of the test is needed as it is already required in the FMVSS No. 213 frontal dynamic test. Evenflo also argued that that the frontal force (fore/aft vehicle direction) component  9 in the side impact test is small compared to the side (lateral vehicle direction) component, and, small compared to the frontal component of the frontal crash in FMVSS No. 213.

Agency Response: NHTSA is denying this petition, and will retain the S5.1.1 (c) requirement. While the side impact test has a small longitudinal component, NHTSA believes this requirement will ensure CRS integrity in a broader range of crash environments. While the agency has not seen any CRSs fail to meet this requirement during our testing, the CRS market is constantly evolving, with manufacturers introducing new designs into the market every year. This requirement will ensure that future designs perform adequately in a side impact crash as well as a frontal crash.

Evenflo commented that Table 1 in paragraph S5.1.6 (installation) does not match the means of installation indicated in S6.1.2.

Agency Response: After reviewing the table example Evenflo showed in its petition, we note that the table in Evenflo's petition was taken from the web version of the June 2022 final rule in the docket system, 10 and the web version had a formatting error. However, the June 2022 final rule in the Federal Register   11 and the electronic Code of Federal Regulations  12 display the correct table. Since receiving Evenflo's comment, the docket system has corrected the table formatting and now displays the correct table.

Evenflo requested several clarifications regarding the contactable surfaces and protrusion limitation requirements. These clarification requests included:

(1) If materials such as soft goods, padding, energy absorbing materials or elements, or flexible materials are permanently affixed to another component, whether the underlying component is considered contactable.

(2) Whether the portion of the shell that is adjacent to the headrest is considered contactable in CRSs with an adjustable headrest.

(3) Whether a contactable surface varies based on the size of the test dummy or associated with the largest dummy for a given use configuration.

(4) Whether energy absorbing materials integrated to the system's structures are considered padding and flexible overlay materials and whether they would be removed prior to inspection.

(5) Whether energy absorbing material that is attached with mechanical fasteners (push pins, tape or glue, etc.) is considered padding or part of the structure to be evaluated for the protrusion limitations.

Agency Response: NHTSA is denying Evenflo's clarifications request. The protrusion limitation requirements in question are not specific to FMVSS No. 213a and have been present in FMVSS No. 213 (S5.2.4) since 1979. The 2014 NPRM proposing the side impact requirements for FMVSS No. 213 (79FR4570) proposed the same existing protrusion limitation requirements. There have been no changes to the protrusion limitation requirements and NHTSA did not receive comments regarding the existing protrusion limitation requirements in the 2014 NPRM proposing side impact requirements for CRS. This requirement was also unchanged during the frontal test upgrade rulemaking, as no proposed changes or comments were received during that rulemaking either. Therefore, this request is out of scope for a petition for reconsideration.

One petitioner, JPMA, urged NHTSA to align the required compliance dates for FMVSS No, 213 (December 5, 2024), FMVSS No. 213a (June 30, 2025) and FMVSS No. 213b (December 5, 2026) to avoid unnecessary costs. JPMA argued that the current compliance schedule would result in duplicative efforts regarding “instruction and label revisions, tooling modifications, model testing and certification processes, marketing materials and more, adding unnecessary costs and challenges.” JPMA explained that every modification triggers a change to the Universal Product Code. JPMA stated that such a change results in product histories and customer reviews starting over for new products, which reduces consumer confidence in established products and brands. JPMA stated that these changes also disrupt retailer relationships with changing product models that sometimes result in buybacks of older versions of the products.

JPMA suggested that the compliance date for the changes to the three standards be aligned with the FMVSS No. 213b compliance date (December 5, 2026) to avoid any unnecessary burdens and to minimize costs for manufacturers. As an alternative, JPMA suggested aligning the labeling changes of FMVSS No. 213 and the side impact requirements in FMVSS No. 213a to a December 5, 2025, compliance date. JPMA explained that this date is favorable for the manufacturers to avoid challenges of midyear product changes and would allow them five additional months to work on the new FMVSS No. 213a side impact requirements.

Agency Response: NHTSA is partially granting JPMA's petition to align the FMVSS Nos. 213, 213a and 213b compliance dates. In the side impact final rule, we discussed that the agency did not see a reason to delay the compliance date of FMVSS No. 213a, or to shorten the lead time for FMVSS No. 213b. The agency explained that making the compliance dates of the two rules coincide had some merit but the consequences of aligning the compliance date of FMVSS No. 213a with that of FMVSS No. 213b would delay the significant safety benefits  13 of side impact protection and thereby outweigh any such merit.

With the option for early compliance, manufacturers have flexibility in deciding when to meet these updated standards. FMVSS No. 213b test results showed that some current CRS designs already meet performance requirements using the new sled text fixture. CRS manufacturers will have an opportunity for early compliance for their CRS models that need no change or only need small design changes, and if desired, to voluntarily comply with the FMVSS No. 213b requirements by the June 30, 2025, compliance date of FMVSS No. 213a to reduce their burden.

To alleviate some of JPMA's concerns on duplicative efforts due to the different compliance dates, we are aligning the updates to FMVSS No. 213 from the frontal test upgrade final rule and the side impact final rule to a single compliance date of June 30, 2025. This action partially grants JPMA's petition. The compliance date alignment will reduce unnecessary burdens through minimization of costs to manufacturers caused by multiple model number changes for a particular CRS design in a short period of time. This change provides an additional 6-7 months for manufacturers to align their labeling and registration card designs and launch them together along with the side impact changes.

One of JPMA's requests was to align the FMVSS No. 213 and FMVSS No. 213a compliance dates to the December 5, 2025, compliance date for FMVSS No. 213b. As noted earlier, delaying the compliance date of FMVSS No. 213a would delay the significant safety benefits from improved side impact protection afforded to children seated in applicable CRSs. Additionally, delaying the FMVSS No. 213 labeling and registration card changes that were finalized in the December 5, 2023 frontal test upgrade final rule notice by an additional year (December 5, 2025) would delay the safety benefits garnered from these updates. 14 NHTSA is granting a little over 6 months delay in requiring compliance with the labeling and registration updates to reduce manufacturer's burden of introducing products to the market multiple times. NHTSA believes this approach reduces burden to manufacturers without significantly impacting the realization of benefits from the updated labeling requirements and does not see need to further delay the benefits. Therefore, NHTSA is denying the petition to align the FMVSS Nos. 213 and 213a compliance date to December 2025.

JPMA expressed concerns with retaining Type 1 belt testing until 2029 without the opportunity for regulatory comment. JPMA claimed that the testing is duplicative considering that CRSs would already be tested with lower anchors and Type 2 belts. JPMA added that NHTSA should consider the time for product validation required by the other changes to FMVSS Nos. 213, 213a and 213b that will require new full evaluations and would delay development of future CRS models.

JPMA argued that the data presented in the side impact final rule where NHTSA estimated “36% of the 2022 light duty vehicle fleet are of model years (MY) 2000-2007 that do not have Type 2 belts in all rear seating positions” is faulty. JPMA noted that in a 2004 final rule (69 FR 70904) amending FMVSS No. 208, “Occupant crash protection,” the agency stated that approximately 77% of the passenger car fleet and 49% of the light truck and van (LTV) fleet had Type 2 belts in the rear center seat. JPMA argued that the data presented showed the sunset date of September 1, 2029, to remove Type 1 seat belt testing, exceeds the objective stated in the final rule of 90 percent of vehicle having Type 2 belts in the rear center seat.

JPMA urged NHTSA to remove the unnecessarily duplicative testing with Type 1 belts to move towards NHTSA's stated goal of encouraging future CRS designs that take advantage of the shoulder belt portion of the seat belt to reduce excursions or to recalculate the sunset date based on more complete vehicle data.

Agency Response: NHTSA is granting JPMA's petition to remove Type 1 seat belt CRS (other than harnesses)  15 installation testing in FMVSS No. 213b. Additionally, NHTSA has decided to amend a labeling requirement relating to Type 1 seat belts in FMVSS No. 213 as part of the agency's response to this petition.

i. Removing Type 1 seat belt CRS installation testing from FMVSS No. 213b. While JPMA pointed to a 2004 final rule (69 FR 70904) where NHTSA indicated that “approximately 77% of the passenger car fleet and 49% of the light truck and van (LTV) fleet had Type 2 belts in the rear center seat,” JPMA is incorrect in its understanding of that data. We note that this percentage did not reflect the vehicle fleet at the time but instead referred to the percentage of vehicles that provided Type 2 seat belts in model year (MY) 2000 vehicles. 16 However, NHTSA recognizes that the estimates from the December 2023 final rule do not take into account vehicles older than MY 2008 that voluntarily provided Type 2 seat belts; therefore, the agency acknowledges that the estimates of Type 1 availability in the fleet (36 percent) should be reevaluated.

To more accurately calculate the percentage of vehicles in the fleet without Type 2 seat belts, NHTSA calculated this percentage with estimates that include the percentages of vehicles that voluntarily provided Type 2 seat belts in vehicles older than MY 2008 to decide whether the sunset of Type 1 seat belt CRS installation testing should be changed. Model year 2008 vehicles or newer are required to have Type 2 belts in rear center seats, so there would be no Type 1 seat belts in the rear center seating position for those vehicles.

NHTSA used a 2015 study  17 for estimated percentages of vehicles older than MY 2008 with rear center Type 1 seat belts. The study determined 59.9 percent of cars and 71.7 percent of light trucks and vans (LTVs) for MY 2007 and earlier had rear center Type 1 seat belts. NHTSA multiplied those shares by the 2022 total vehicle registrations  18 to estimate the percentage of vehicles that have Type 1 belts in rear center seating positions. NHTSA estimated that 15 percent of the light duty fleet in 2022 had rear center Type 1 seat belts. NHTSA then applied vehicle survivability schedules to estimate future fleet estimates of vehicles with rear center Type 1 seat belts. Estimates show that in 2026, only 9 percent of vehicles in the fleet are expected to have rear center lap belts.

In the side impact final rule, NHTSA noted that CRS testing with Type 1 seat belt attachment would end when 90 percent of the fleet consists of vehicles with Type 2 seat belts at all rear seating positions. 19 The new estimates show that by the time FMVSS No. 213b becomes mandatory on December 5, 2026, the vehicle fleet would already have 91 percent of vehicles with Type 2 seat belts in all rear seating positions. Therefore, the agency is removing the requirements from FMVSS No. 213b to test CRSs (other than harnesses) with Type 1 seat belt installations. If a manufacturer chooses to comply early with FMVSS No. 213b for a CRS model, that CRS model would not have to be tested with Type 1 seat belt installation. 20

ii. Restoring Type 1 seat belt labeling requirements in FMVSS No. 213. In addition to granting JPMA's petition above, NHTSA has also decided to amend FMVSS No. 213's labeling requirements relating to Type 1 seat belts. Specifically, NHTSA is restoring paragraph S5.5.2(l)(2) to its prior version, before the frontal test upgrade final rule was issued.

Before the frontal test upgrade final rule, paragraph S5.5.2(l)(2) required that CRSs have an installation diagram attached to the CRS showing the CRS installed with a Type 1 seat belt. During the process of amending the regulatory text for FMVSS No. 213 as part of the frontal test upgrade final rule, the agency deleted this requirement, making it so paragraph S5.5.2(l)(2) simply read “[Reserved].” Because the agency has decided to amend the lap belt requirements in FMVSS No. 213b as part of this petition for reconsideration response, but has not applied that same amendment to FMVSS No. 213, CRSs certified to FMVSS No. 213 up until 2026 will still have to be certified with Type 1 belts. Accordingly, the agency feels it is necessary for CRSs certified to FMVSS No. 213 to have a label attached showing a diagram of the CRS installed with a Type 1 belt. For the reasons discussed above, the agency will be restoring this requirement in paragraph S5.5.2(l)(2) of FMVSS No. 213 as part of this final rule.

JPMA and Evenflo requested that FMVSS Nos. 213 and 213b have a consistent metric conversion number for standards that specify 40-pounds, as currently the standards specify 18 kg, 18.2 kg, and 18.4 kg in various places. JPMA and Evenflo encouraged a rounded 18 kg conversion even though it is not an exact conversion. Evenflo noted that the FMVSS No. 213 regulation has long used 18 kg as the equivalent to 40 pounds in labeling requirements. As an alternative, the petitioners suggested using a more exact conversion (rounding to a single decimal place) of 18.1 kg.

Agency Response: NHTSA has reviewed the regulatory text sections with inconsistent conversions from 40 pounds to kilograms. NHTSA agrees that having a single conversion throughout the three standards is preferable. Therefore, NHTSA is granting this petition and is amending the regulatory text of FMVSS No. 213 and FMVSS No. 213b to have an 18 kg value for the 40-pound conversion throughout the standards. As Evenflo pointed out, NHTSA has used this conversion in the current FMVSS No. 213 regulatory text. Accordingly, the agency agrees that amendments to FMVSS No. 213 and 213b should use the same conversion.

Evenflo requested removing duplicative language. Evenflo noted that S5 of FMVSS No. 213b has duplicative language in different subparagraphs (S5(b)(2)  21 and S5(g))  22 which creates ambiguity with respect to what is intended and particularly as to whether there is any substantive difference in the two provisions.

Evenflo also explained that given the discussion in Section XI(h) of the Preamble to the December 2023 Final Rule (88 FR 84514), Evenflo understands that the meaning of “up to 18 kilograms (40 pounds)” is substantively synonymous with “less than 18 Kilograms (40 pounds).

Agency Response: NHTSA is granting Evenflo's petition to remove duplicative language in S5(b)(2) and S5(g) by removing S5(g). NHTSA is also amending S5(b)(2) to provide clearer language. The statement in S5(b)(2) will be changed from wording describing the CRS recommend weight and height as “up to 18 kilograms (40 pounds)” and “up to 1100 millimeters (mm)” to “less than 18 kilograms (40 pounds)” and “less than 1100 millimeters (mm),” respectively.

JPMA requested guidance on the new registration information for consumers. JPMA suggested guidance could be in a revised Laboratory Test Procedure or a separate, dedicated document. JPMA argued that this guidance should be provided soon due to the short time period prior to the compliance date for the registration requirements.

Agency Response: NHTSA is denying the petition to provide additional guidance on the registration card. The petitioners requested guidance on the new registration information for consumers. This request is for not a rulemaking action, and, therefore, is out of scope.

NHTSA notes that the regulatory text describes the information that must be provided in the registration card. NHTSA did not receive any comments from CRS manufacturers seeking more guidance on this content. The goal of the changes to the registration form was to provide flexibility to manufacturers in how they communicate with consumers to increase registration rates. NHTSA notes that the registration forms that comply with current requirements would also comply with the new requirements.

In the frontal test upgrade final rule (88 FR 84515) published on December 5, 2023, NHTSA inadvertently omitted important conditional language in the FMVSS No. 213b regulatory text. The omitted language creates an inconsistency within the standard, and several stakeholders have contacted NHTSA's compliance office about this issue. The agency is correcting the regulatory text as part of this final rule to alleviate potential confusion.

In the frontal test upgrade final rule, the agency inadvertently omitted conditional language from FMVSS No. 213b S5.5.2(g)(1)(ii). 23 This paragraph and subsection were carried over from FMVSS No. 213. FMVSS No. 213 S5.5.2 specifies a labeling requirement for CRSs. Specifically, paragraph S5.5.2(g)(1)(ii) requires specific statements be present on the CRS explaining when and when not to secure the CRS with the vehicle's child restraint anchorage system. This section has several conditional requirements, including a requirement that a statement be present that the child restraint anchorage system should not be used in certain scenarios for CRSs manufactured from February 27, 2014, to February 26, 2015. The conditional language for this requirement—that the statement be present on CRSs manufactured in the time frame referenced above—appears in brackets in that paragraph of FMVSS No. 213.

In establishing FMVSS No. 213b as part of the frontal test upgrade, much of the language from FMVSS No. 213 was carried over to FMVSS No. 213b. The agency's intent was to carry over paragraph S5.5.2(g)(1)(ii) as drafted in FMVSS 213 to FMVSS No. 213b. That did not happen, as the parenthetical indicating that the final labeling requirement in S5.5.2(1)(ii) only applied to seats manufactured between February 27, 2014, and February 26, 2015, was not carried over. The result of that omission is that CRSs certified to FMVSS No. 213b now must include the statement instructing consumers when not to use the child restraint anchorage system, regardless of when the CRS was manufactured. This requirement creates inconsistency within the standard, as Tables S5.5.2(L)(3)(I)(B) and (C) provide different labeling requirements for the maximum weight limit for child restraint anchorage system use. For newly manufactured CRSs, these tables are what manufacturers should rely on in determining labeling requirements for weight thresholds for child restraint anchorage systems. However, because the conditional language was omitted from paragraph S5.5.2(g)(1)(ii), there are now two conflicting labeling requirements for newly produced CRSs.

This outcome is not what the agency intended, and the current language creates contradictory requirements within the standard. The agency believes that alleviating confusion with the standard will make it easier for manufacturers to comply with the standard. Additionally, this amendment will improve safety outcomes, as the current language would likely require that manufacturers have contradictory language printed on labels attached to CRSs. This conflicting language will only lead to confusion on the part of the consumer and may increase misuse rates. For the reasons listed above, NHTSA is amending FMVSS No. S5.5.2(g)(1)(ii) by removing the last requirement listed in FMVSS No. S5.5.2(g)(1)(ii). We believe this is the proper way to address the issue discussed above, as no CRSs certified to FMVSS No. 213b will have been manufactured between 2014 and 2015. Accordingly, there is no reason to have a labeling requirement in FMVSS No. 213b that applies only to seats produced during that time frame.

The agency expects no safety benefits as a result of this final rule. However, it is worth noting that the agency believes addressing the inconsistency in current labeling requirements in FMVSS No. 213b will only result in positive safety outcomes. There will be a cost reduction from removing requirements to test CRS secured with Type 1 seat belts. The December 2023 final rule estimated a temporary annual testing cost with Type 1 seat belts for 3 years of $5,198,000. This final rule will eliminate the estimated Type 1 seat belt installation test cost in FMVSS No. 213b.

Because the amendments of this final rule responding to petitions for reconsideration are minor corrections, these amendments will be effective on November 8, 2024. The amendments will follow the compliance dates for the corresponding sections.

NHTSA has considered the potential impact of this final rule under E.O. 12866, E.O. 14094, E.O. 13563, DOT Order 2100.6A and the Department of Transportation's regulatory policies and procedures. This NPRM is not considered to be significant under the Department of Transportation's regulatory policies and procedures. 24

This final rule responds to petitions for reconsideration to the June 2022 final rule establishing FMVSS No. 213a and the December 2023 final rule establishing FMVSS No. 213b. This final rule makes several changes to FMVSS No. 213, FMVSS No. 213a and FMVSS No. 213b; specifically, the minor changes provide increased clarity on what the standard requires and bring increased uniformity across the three standards. An additional amendment eliminates the Type 1 belt testing requirement for FMVSS No. 213 through 2029; instead the agency will only be testing with a Type 2 belt starting in 2026. Accordingly, the agency updated the costs in preparation of this final rule. The agency estimates a savings of $5,198,000 compared to the final rule because manufacturers will not have to conduct tests with Type 1 belts from 2026 through 2029. 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 preparation of a regulatory evaluation.

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of proposed rulemaking or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities ( i.e., small businesses, small organizations and small governmental jurisdictions), unless the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. Agencies must also provide a statement of the factual basis for this certification.

I certify that this rule will not have a significant economic impact on a substantial number of small entities. NHTSA estimates there to be 38 manufacturers of child restraints, none of which are small businesses. Even if there were a small CRS manufacturer, the impacts of this rule will not be significant. The amendments made in this final rule are small, and if anything, the impact of the final rule will result in a net savings for a small business CRS manufacturer, due to the fact that it would not have to conduct testing with a Type 1 belt from 2026 through 2029 to ensure compliance with FMVSS No. 213.

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 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 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 NPRM for the purposes of the NEPA. 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 PRA of 1995 (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.

The final rule amending FMVSS No. 213 (88 FR 84514) included updates to NHTSA's CRS registration requirements, which constituted an information collection. Included in that final rule was a notice soliciting comment on the information collection associated with the updated CRS registration requirements (OMB Control Number: 2127-0576). No comments were received. NHTSA will submit the Information Collection Request to OMB for its review and approval of the revised collection of information.

This final rule amends the CRS registration requirements adopted in the frontal test upgrade final rule by pushing the compliance date back to June of 2025. The change in the compliance date does not impact the information collection burden outlined in the frontal test upgrade final rule and none of the other amendments in this final rule create “collections of information” as defined at 5 CFR 1320.3(c)).

The UMBRA of 1995 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 E.O. 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 NTTAA of 1995 (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 and the Society of Automotive Engineers. 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.

E.O. 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 DOT assigns a 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 (Volume 65, Number 70; Pages 19477-78).

In consideration of the foregoing, NHTSA amends 49 CFR part 571 as set forth below.

This rule establishes a framework under the authority of the Marine Mammal Protection Act (MMPA) (16 U.S.C. 1361 et seq. ) to allow for the authorization of take of marine mammals incidental to the Navy's construction activities related to the Project at NAVSTA Norfolk.

We received an application from the Navy requesting 5-year regulations and authorization to take multiple species of marine mammals. Take is anticipated to occur incidental to impact and vibratory pile driving, by Level B harassment only. Please see Background below for definitions of harassment.

Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region for up to 5 years if, after notice and public comment, the agency makes certain findings and issues regulations that set forth permissible methods of taking pursuant to that activity and other means of effecting the “least practicable adverse impact” on the affected species or stocks and their habitat (see the discussion below in the Mitigation section), as well as monitoring and reporting requirements. Section 101(a)(5)(A) of the MMPA, and the implementing regulations at 50 CFR part 216 subpart I, provide the legal basis for issuing this rule containing 5-year regulations, and for any subsequent letters of authorization (LOAs). As directed by this legal authority, this final rule contains mitigation, monitoring, and reporting requirements.

Following is a summary of the major provisions of this final rule regarding Navy construction activities. These measures include:

• Required monitoring of the construction areas to detect the presence of marine mammals before beginning construction activities;

• Shutdown of construction activities under certain circumstances to avoid injury of marine mammals; and

• Soft start for impact pile driving to allow marine mammals the opportunity to leave the area prior to beginning impact pile driving at full power.

The MMPA prohibits the “take” of marine mammals, with certain exceptions Section 101(a). Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq. ) direct the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are proposed or, if the taking is limited to harassment, a notice of a proposed IHA is provided to the public for review.

Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses, where relevant. Further, NMFS must prescribe the permissible methods of taking and other “means of effecting the least practicable adverse impact” on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stocks for taking for certain subsistence uses (referred to in shorthand as “mitigation”); and requirements pertaining to the mitigation, monitoring and reporting of the takings are set forth (Section 101(5)(A)(i)(II)(aa)). The definitions of all applicable MMPA statutory terms cited above are included in the relevant sections below.

On September 14, 2023, NMFS received a request from the Navy for authorization to take marine mammals incidental to repair and replacement of the Q8 Bulkhead at NAVSTA Norfolk in Norfolk, VA. Following NMFS' review of the application, the Navy submitted a revised version on December 18, 2024 and after review of that application a second revised version was submitted on January 16, 2024. The application was deemed adequate and complete on February 23, 2024. A notice of receipt of the Navy's application was published in the Federal Register on March 14, 2024 (89 FR 18605). No comments were received on the application during the 30-day comment period.

On July 3, 2024, NMFS published a notice of proposed rulemaking in the Federal Register (89 FR 55180). All comments were considered in development of this final rule (see Comments and Responses). Navy's request is for the take of four species by Level B harassment only. Neither Navy nor NMFS expect serious injury or mortality to result from this activity. The regulations will be valid for 5 years (2025-2029). No changes were made from the proposed to the final rule.

The Navy proposes to repair and replace the Q8 bulkhead at NAVSTA Norfolk, that has failed in multiple locations, creating sinkholes and unsafe conditions. Work on the bulkhead will be conducted from Piers 12 and 14 to restore function of this Navy dock system. Vibratory and impact hammers will be used for pile removal and installation. Sounds produced from these pile removal and installation activities may result in the incidental take of marine mammals, by Level B harassment only. Approximately 378 piles will be removed and 836 piles will be installed. Work will be conducted in 3 phases over 212 non-consecutive days to complete the pile removal and installation activities.

A detailed description of the planned construction project is provided in the Federal Register notice for the proposed rule (89 FR 55180, July 3, 2024). Since that time, no changes have been made to the planned activities. Therefore, a detailed description is not provided here. Please refer to that Federal Register notice for the description of the specific activity.

NMFS' notice of proposed rulemaking was published in the Federal Register on July 3, 2024 (89 FR 55180). That proposed rule described, in detail, the Navy's activities, the marine mammal species that may be affected by the activities, and the anticipated effects on marine mammals. In that proposed rule, we requested public input on the request for authorization described therein, our analyses, the proposed authorization, and any other aspect of the notice of proposed rulemaking, and requested that interested persons submit relevant information, suggestions, and comments. This proposed rule was available for a 30-day public comment period.

During the 30-day public comment period, NMFS received 2 substantive comment submissions, from members of the public. NMFS' responses to the comments are provided below, and all comments are available online at: https://www.regulations.gov/document/NOAA-NMFS-2024-0055-0001/comment.

Comment 1: A commenter stated that the sound propagation equation used by the Navy was simplistic and did not account for a variety of environmental factors that may affect the accuracy of the predicted harassment zones associated with pile driving. The comment stated that at a minimum both bottom composition and topography should be included in the acoustic modeling of the Level B harassment zones.

Response 1: NMFS agrees with the commenter that assuming practical spreading loss is a simplistic approach and excludes certain environmental factors that may be influential on real transmission loss. However, NMFS disagrees with the commenter that the acoustic modeling is inadequate and “undermines the predictions of Level B harassment.” The assumption of practical spreading loss is an approach that is readily accessible to all applicants, and while it does exclude certain relevant factors, it has been supported by hydroacoustic measurements in many locations, where measured transmission loss coefficients typically are between 10 and 30 depending on the site, measurement date, activity, and metric. Further, more complex modeling requires detailed knowledge of the source spectra, seabed composition and associated acoustic parameters, and the sound speed profile, all of which are often not readily available and introduce their own non-negligible uncertainty.

In addition, the Navy is among the leaders in hydroacoustic measurements of pile driving activities (Illingworth and Rodkin, 2017; NAVFAC Southwest, 2020) and continues to contribute to the scientific knowledge available on this topic. A relevant example can be found in the NAVFAC 2017 pile driving noise measurement report (Illingworth and Rodkin, 2017), wherein transmission loss coefficients were measured for a variety of pile driving activities at JEB Little Creek NAVSTA and NAVSTA Norfolk. Transmission loss coefficients varied significantly by activity and location and ranged from 12.2 to 31.9, but were often near 15. This shows that while practical spreading is not a perfect model, it is a good approximation in waters near the planned activity.

Notably, sophisticated propagation modeling has been performed for pile driving of concrete, composite, and timber piles in the Norfolk region. The Navy has completed this transmission loss modeling and can be reviewed in the following document: https://media.fisheries.noaa.gov/dam-migration/nsn_pile_driving_final_loa_appendix_b_may_2020.pdf. While estimated transmission loss coefficients are not provided in the report, the depth-averaged cumulative SEL is given as a function of range in figure 10 in the report, for the case of a constant water depth of 13 meters (m). This modeling scenario was included only for illustrative purposes but was deemed by the authors to be near the upper bound for expected ranges to thresholds for the study. By fitting several points from the unweighted curve, NMFS has determined that the best fit transmission loss coefficient for this model result is approximately 14.5, which agrees well with the practical spreading model.

Based on the above analyses and information, NMFS is confident that the analysis of the harassment zones reasonably assesses the potential impacts to marine mammals and has not changed that analysis or the reliance upon such analysis in this final rule.

Comment 2: A commenter urged NMFS to implement “hard limits” on the number of marine mammals that could be taken under an authorization granted to the Navy. Further, the commenter stated that if take of marine mammals exceeded those limits construction should be halted until NMFS is able to re-analyze the impacts of the project. The commenter also urged NMFS to have a “fair process” for this authorization and to not give special exceptions to the Navy regarding their application for an LOA. The commenter also recommended that NMFS and the Navy consider the use of a sound producing device to deter marine mammals from the Project area in order to reduce the number of animals taken during construction activities.

Response 2: NMFS agrees with the commenter that takes should be limited in numbers for each incidental take authorization. In this rule and the proposed rule the Navy and NMFS estimated takes that were likely to occur during the course of this project (see Estimate Take section). Take numbers for each marine mammal species were estimated for each phase of construction. The maximum annual take numbers for each species may not be exceeded in any given year, and the total take level may not be exceeded over the 5-year period of effectiveness of this rule.

NMFS also agrees with the commenter that a fair process for the application and issuance of all incidental take authorizations should be adhered to. Once the application submitted by the Navy for this project was deemed adequate and complete, NMFS published a notice of receipt of the application in the Federal Register (89 FR 18605, March 14, 2024) with a 30-day comment period for the public to review and comment on the contents of the application. After the comment period concluded, NMFS developed a proposed rule (89 FR 55180, July 3, 2024) to further engage the public on the analyses of the project and the impacts to marine mammals in the Project area. That proposed rule process included a 30-day comment period for the public. NMFS reviewed and responded comments submitted on the proposed rule and determined if any changes were necessary in the final rule. This process is in accordance with the relevant requirements of the MMPA and of the Administrative Procedure Act, and is applied in the same fashion to all applicants for incidental take authorizations.

NMFS agrees that sound producing devices may be a useful tool for deterring marine mammals in certain circumstances and when warranted, e.g., when deterrence may prevent mortality or serious injury. This project will only result in behavioral disturbance (Level B harassment) which may result in (1) changing durations of surfacing and dives, number of blows per surfacing, or moving direction and/or speed; (2) reduced/increased vocal activities; (3) changing/cessation of certain behavioral activities ( e.g., socializing or feeding); (4) visible startle response or aggressive behavior ( e.g., tail/fluke slapping or jaw clapping); (5) avoidance of areas where sound sources are located (Thorson and Reyff, 2006) (see Behavioral Effects section for more information). Therefore, for this project NMFS disagrees with the use of acoustic deterrence devices since those devices would produce the same level of harassment as the construction activities of this project.

On May 3, 2024, NMFS published (89 FR 36762) and solicited public comment on its draft updated Technical Guidance ( https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance ), which includes updated thresholds and weighting functions to inform auditory injury estimates, and is intended to replace the 2018 Technical Guidance referenced above, once finalized. NMFS completed a basic comparative analysis based on the updated Technical Guidance and has updated the Level A harassment and shutdown zones (see Estimated Take and Mitigation). This change is necessary because the authorization and regulations issued under this rule are effective for 5 years and the updated Technical Guidance will be effective before this rule expires. This updated analysis did not change the anticipated take numbers analyzed through this rule.

Sections 3 and 4 of the application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history of the potentially affected species. NMFS fully considered all of this information, and we refer the reader to these descriptions, instead of reprinting the information. Additional information regarding population trends and threats may be found in NMFS' Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments ) and more general information about these species ( e.g., physical and behavioral descriptions) may be found on NMFS' website at: https://www.fisheries.noaa.gov/find-species.

Table 3 lists all species or stocks for which take is expected and proposed to be authorized for this activity, and summarizes information related to the population or stock, including regulatory status under the MMPA and Endangered Species Act (ESA) and potential biological removal (PBR), where known. PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS' SARs) (section 3 (19)(A)). While no serious injury or mortality is anticipated or proposed to be authorized here, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species or stocks and other threats.

Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS' stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS' U.S. Atlantic SARs. All values presented in table 1 are the most recent available at the time of publication (including from the draft 2023 SARs) and are available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments.

A detailed description of the species likely to be affected by the Navy's construction project, including brief introductions to the species and relevant stocks as well as available information regarding population trends and threats, and information regarding local occurrence, were provided in the Federal Register notice for the proposed rule (89 FR 55180, July 3, 2024); since that time, we are not aware of any changes in the status of these species and stocks; therefore, detailed descriptions are not provided here. Please refer to that Federal Register notice for these descriptions. Please also refer to NMFS' website ( https://www.fisheries.noaa.gov/find-species ) for generalized species accounts.

Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To appropriately assess the potential effects of exposure to sound, it is necessary to understand the frequency ranges marine mammals are able to hear. Not all marine mammal species have equal hearing capabilities ( e.g., Richardson et al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et al. (2007, 2019) recommended that marine mammals be divided into hearing groups based on directly measured (behavioral or auditory evoked potential techniques) or estimated hearing ranges (behavioral response data, anatomical modeling, etc. ). Note that no direct measurements of hearing ability have been successfully completed for mysticetes ( i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described generalized hearing ranges for these marine mammal hearing groups. Generalized hearing ranges were chosen based on the approximately 65 decibel (dB) threshold from the normalized composite audiograms, with the exception for lower limits for low-frequency cetaceans where the lower bound was deemed to be biologically implausible and the lower bound from Southall et al. (2007) retained. Marine mammal hearing groups and their associated hearing ranges are provided in table 2.

The pinniped functional hearing group was modified from Southall et al. (2007) on the basis of data indicating that phocid species have consistently demonstrated an extended frequency range of hearing compared to otariids, especially in the higher frequency range (Hemilä et al., 2006; Kastelein et al., 2009; Reichmuth and Holt, 2013).

For more detail concerning these groups and associated frequency ranges, please see NMFS (2018) for a review of available information.

The effects of underwater noise from the Navy's construction activities have the potential to result in behavioral harassment of marine mammals in the vicinity of the Project area. The proposed rule (89 FR 55180, July 3, 2024) included a discussion of the effects of anthropogenic noise on marine mammals and the potential effects of underwater noise from the Navy's construction on marine mammals and their habitat. That information and analysis is referenced in this final rule and is not repeated here; please refer to the proposed rule (89 FR 55180, July 3, 2024).

This section provides an estimate of the number of incidental takes that may be authorized, which will inform both NMFS' consideration of “small numbers,” and the negligible impact determinations.

Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as any act of pursuit, torment, or annoyance, which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment) (16 U.S.C. 1362(18)(A)(i)-(ii)).

Authorized takes would be by Level B harassment only, in the form of disruption of behavioral patterns for individual marine mammals resulting from exposure to sounds emitted from pile driving. Based on the nature of the activity and the anticipated effectiveness of the mitigation measures ( i.e., shutdown zones) discussed in detail below in the Mitigation section, Level A harassment is neither anticipated nor would be authorized.

As described previously, no serious injury or mortality is anticipated or authorized for this activity. Below we describe how the take numbers are estimated.

For acoustic impacts, generally speaking, we estimate take by considering: (1) acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and (4) the number of days of activities. We note that while these factors can contribute to a basic calculation to provide an initial prediction of potential takes, additional information that can qualitatively inform take estimates is also sometimes available ( e.g., previous monitoring results or average group size). Below, we describe the factors considered here in more detail and present the take estimates.

NMFS recommends the use of acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur permanent threshold shift (PTS) of some degree (equated to Level A harassment).

Level B Harassment —Though significantly driven by received level, the onset of behavioral disturbance from anthropogenic noise exposure is also informed to varying degrees by other factors related to the source or exposure context ( e.g., frequency, predictability, duty cycle, duration of the exposure, signal-to-noise ratio, distance to the source), the environment ( e.g., bathymetry, other noises in the area, predators in the area), and the state of the receiving animals ( e.g., hearing, motivation, experience, demography, life stage, depth) and can be difficult to predict ( e.g., Southall et al., 2007, 2021, Ellison et al., 2012). Based on what the available science indicates and the practical need to use a threshold based on a metric that is both predictable and measurable for most activities, NMFS typically uses a generalized acoustic threshold based on received level to estimate the onset of behavioral harassment. NMFS generally predicts that marine mammals are likely to be behaviorally harassed in a manner considered to be Level B harassment when exposed to underwater anthropogenic noise above root-mean-squared pressure received levels (RMS SPL) of 120 dB (referenced to one micropascal (re one μPa)) for continuous ( e.g., vibratory pile driving) and above RMS SPL 160 dB re one μPa for non-explosive impulsive ( e.g., seismic airguns) or intermittent ( e.g., scientific sonar) sources. Generally speaking, Level B harassment take estimates based on these behavioral harassment thresholds are expected to include any likely takes by temporary threshold shift (TTS) as, in most cases, the likelihood of TTS occurs at distances from the source less than those at which behavioral harassment is likely. TTS of a sufficient degree can manifest as behavioral harassment, as reduced hearing sensitivity and the potential reduced opportunities to detect important signals ( i.e., conspecific communication, predators, and prey) may result in changes in behavior patterns that would not otherwise occur.

The Navy's activity includes the use of continuous ( e.g., vibratory pile driving and removal) and impulsive ( e.g., impact pile driving) sources, and therefore the RMS SPL thresholds of 120 and 160 dB re one μPa are applicable.

The ensonified area associated with Level A harassment is more technically challenging to predict due to the need to account for a duration component. Therefore, NMFS developed an optional User Spreadsheet tool to accompany the Technical Guidance that can be used to relatively simply predict an isopleth distance for use in conjunction with marine mammal density or occurrence to help predict potential takes. We note that because of some of the assumptions included in the methods underlying this optional tool, we anticipate that the resulting isopleth estimates are typically going to be overestimates of some degree, which may result in an overestimate of potential take by Level A harassment. However, this optional tool offers the best way to estimate isopleth distances when more sophisticated modeling methods are not available or practical. For stationary sources impact or vibratory pile driving and removal, the optional User Spreadsheet tool predicts the distance at which, if a marine mammal remained at that distance for the duration of the activity, it would be expected to incur PTS. Inputs used in the optional User Spreadsheet tool, and the resulting estimated isopleths, are reported below. For concurrent activities where combined impact and vibratory hammer scenarios shown in table 9, the estimated Level A harassment distances reflect the impact driving activity and the estimated Level B harassment distances reflect the combined vibratory source levels for that activity.

On May 3, 2024, NMFS published (89 FR 36762) and solicited public comment on its draft updated Technical Guidance ( https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance ), which includes updated thresholds and weighting functions to inform auditory injury estimates, and is intended to replace the 2018 Technical Guidance referenced above, once finalized. The public comment period ended on June 17, 2024, and although the updated Technical Guidance is not final, we expect the updated Technical Guidance to represent the best available science once it is. To best ensure we have considered an appropriate estimate of take by Level A harassment, in consideration of the best available science, we have conducted basic comparative calculations using the draft updated Technical Guidance for the purposes of understanding the number of takes by Level A harassment (auditory injury) that would be predicted if the draft updated Technical Guidance were finalized with no changes. The relevant draft updated thresholds and weighting functions may be found in the executive summary of the draft updated Technical Guidance, on pages 3 and 4. We have also considered whether modifications to mitigation zones would be appropriate in light of the draft updated Technical Guidance. Based on the outcome of these comparisons/analyses using the draft updated Technical Guidance, NMFS has made changes as appropriate to the required shutdown zones necessary to avoid Level A harassment. These updates to the estimated harassment zones (see table 8 and table 9) and resulting changes to the required shutdown zones (see table 11 and table 12) are minor and do not result in any changes to the take levels as described in the proposed rule and analyzed through this final rule.

These thresholds are provided in table 3 and table 4 below. The references, analysis, and methodology used in the development of the thresholds are described in NMFS' 2018 Technical Guidance and the draft NMFS' 2024 Technical Guidance, both of which may be accessed at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

Here, we describe operational and environmental parameters of the activity that are used in estimating the area ensonified above the acoustic thresholds, including source levels and transmission loss coefficient.

The sound field in the Project area is the existing background noise plus additional construction noise from the Project. Marine mammals are expected to be affected via sound generated by the primary components of the Project ( i.e., impact pile driving and vibratory pile driving and removal). The maximum underwater area ensonified above the thresholds for individual activities of behavioral harassment referenced above is 93.5 square kilometers (km 2 )(36.1 miles (mi 2 )) and will consist of an area reaching the opposite shoreline of the river (see figures 6.6, 6.8, and 6.10 in the Navy's application for the Incidental Take Authorization for the Q8 bulkhead Project). The maximum (underwater) area ensonified above the thresholds for concurrent activities of behavioral harassment referenced above is 97.9 km 2 (37.8 mi 2 ) and will consist of a similar area reaching the opposite shoreline of the river as individual activities (see figures 6.11-6.16 in the Navy's application). Additionally, vessel traffic and other commercial and industrial activities in the Project area may contribute to elevated background noise levels which may mask sounds produced by the Project.

Transmission loss ( TL ) is the decrease in acoustic intensity as an acoustic pressure wave propagates out from a source. TL parameters vary with frequency, temperature, sea conditions, current, source and receiver depth, water depth, water chemistry, and bottom composition and topography. The general formula for underwater TL is:

This formula neglects loss due to scattering and absorption, which is assumed to be zero here. The degree to which underwater sound propagates away from a sound source is dependent on a variety of factors, most notably the water bathymetry and presence or absence of reflective or absorptive conditions including in-water structures and sediments. Spherical spreading occurs in a perfectly unobstructed ( i.e., free-field) environment not limited by depth or water surface, resulting in a 6-dB reduction in sound level for each doubling of distance from the source (20*log[range]). Cylindrical spreading occurs in an environment in which sound propagation is bounded by the water surface and sea bottom, resulting in a reduction of three dB in sound level for each doubling of distance from the source (10*log[range]). A practical spreading value of 15 is often used under conditions, such as the Project site, where water increases with depth as the receiver moves away from the shoreline, resulting in an expected propagation environment that will lie between spherical and cylindrical spreading loss conditions. Practical spreading loss is assumed here.

The intensity of pile driving sounds is greatly influenced by factors such as the type of piles, hammers, and the physical environment in which the activity takes place. In order to calculate the distances to the Level A harassment and the Level B harassment sound thresholds for the methods and piles being used in this Project, the Navy and NMFS used acoustic monitoring data from other locations to develop proxy source levels for the various pile types, sizes, and methods. The Project includes vibratory and impact installation of prestressed concrete and composite piles and vibratory removal of existing concrete piles. Steel sheet piles to make up the wall of the bulkhead will be installed with vibratory hammers. Source levels for each pile size and driving method for individual activities are presented in table 5. For concurrent activities where two noise sources have overlapping sound fields, there is potential for higher sound levels than for non-overlapping sources because the isopleth of one sound source encompasses the sound source of another isopleth. In such instances, the sources are considered additive and combined using the rules of decibel addition. For addition of two simultaneous sources, the difference between the two sound source levels is calculated, and: (1) if that difference is between zero and one dB, three dB are added to the higher sound source level; (2) if the difference is between two or three dB, two dB are added to the highest sound source level; (3) if the difference is between four to nine dB, one dB is added to the highest sound source level; and (4) with differences of 10 dB or more, there is no addition. Source levels for each pile size and vibratory driving for concurrent activities are presented in table 6.

The purpose of our direct final rule is to notify the public that we are revising the Enumeration of threatened marine and anadromous species (50 CFR 223.102(e)) to reflect the scientifically accepted taxonomy and nomenclature of one coral species, Euphyllia paradivisa, listed under section 4 of the ESA in 2014 (16 U.S.C. 1531 et seq. ). The change reflects the most recently accepted scientific name in accordance with 50 CFR 223.102(b).

We are publishing this rule as a direct final rule because this is a noncontroversial action that reflects decisions already taken in the scientific community, such that prior notice and an opportunity to comment is unnecessary. This rule does not change the listing status of the species under the ESA and does not alter any protections afforded the species or any other legal requirements arising from the species' listing under the ESA. This change should be undertaken in as timely a manner as possible. This rule will be effective, as published in this document on the effective date specified in DATES , unless we receive significant adverse comments on or before the comment due date specified in DATES . Significant adverse comments are comments that provide strong scientific justification as to why the taxonomic and nomenclature changes to the Enumeration of the listed entity should not be adopted or why the rule should be changed. Please include sufficient scientific information with your comments that will allow us to verify the basis for any significant adverse comments.

If we receive significant adverse comments, we will publish a notification in the Federal Register withdrawing this rule before the effective date, and we will engage in notice and comment rulemaking under the applicable requirements of the Administrative Procedure Act to promulgate these changes to 50 CFR 223.102(e).

Under 50 CFR 223.102(b), we use the most recently accepted scientific name of any species that we have determined to be threatened under the ESA, relying to the extent practicable on the International Code of Zoological Nomenclature (ICZN). The ESA likewise requires that listing decisions be based solely on the best scientific and commercial data available (see 16 U.S.C. 1533(b)(1)(A)). Using the best available scientific information, our direct final rule documents a taxonomic change (scientific name) to Euphyllia paradivisa. This change is supported by studies published in peer-reviewed journals, acceptance by the World Register of Marine Species, our 5-year Review of the species (NMFS 2024), and broad acceptance by scientists around the world. We revise the scientific name of Euphyllia paradivisa listed under section 4 of the ESA (16 U.S.C. 1531 et seq. ) as follows: Fimbriaphyllia paradivisa. We make this change to the Enumeration of threatened marine and anadromous species (50 CFR 223.102(e)) to reflect the most recently accepted scientific name in accordance with 50 CFR 223.102(b).

Based on colony growth form, Veron & Pichon (1980) established two subgenera within the genus Euphyllia, namely Euphyllia and Fimbriaphyllia. Veron (1990) described the species Euphyllia paradivisa, placing it in Euphyllia instead of Fimbriaphyllia based on skeletal and tentacle morphological characteristics. More recently, molecular data showed that the species traditionally ascribed to the genus Euphyllia could be separated into two major lineages that were distinct enough to fall within two separate genera (Luzon et al. 2017, Arrigoni et al. 2023). Luzon et al. (2017) demonstrated that these two major lineages, can be distinguished based on the polyp morphology and reproductive traits. As such, Luzon et al. (2017) elevated Fimbriaphyllia from a subgenera within the genus Euphyllia to a separate genus to be composed of five species, namely F. ancora, F. divisa, F. paraancora, F. paradivisa, and F. yaeyamensis; this taxonomic change was supported by the results of Arrigoni et al. (2023). There has been broad acceptance among scientists around the world of the taxonomic change suggested by these studies. This taxonomic change has also been accepted by the World Register of Marine Species (WoRMS), an authoritative and comprehensive registry of marine species that follows ICZN protocols (see https://www.marinespecies.org ). (We note that, while the separate ICZN database (ZooBank) is generally a reliable source for taxonomic information, in this instance, the ZooBank is incomplete because it often does not include coral species and marine invertebrates; thus, we are not relying on the ZooBank for evidence of the current, accepted scientific name of this coral species.)

NMFS, therefore, recognizes the taxonomic change and is making technical revisions to 50 CFR 223.102(e) to reflect the most recently accepted scientific name based on the best available scientific information about the listed species. Once the changes to 50 CFR 223.102(e) take effect, the taxonomic change will be incorporated into all new NMFS publications pertaining to the species. This species will continue to be listed as threatened and is subject to the same protections as those that existed prior to these changes. No other aspect of the entry for this species in 50 CFR 223.102(e) will change as a result of this rule.

The Assistant Administrator for Fisheries finds that good cause exists to waive the requirement for prior notice and opportunity for public comment, pursuant to 5 U.S.C. 553(b)(B). Such procedures would be unnecessary as the taxonomic change made in this rule is technical and reflects decisions already taken in the scientific community. This rule does not change the listing status of this coral species under the ESA, and therefore does not alter the legal protections afforded to the species or any other requirements arising from its listing under the ESA or add any new requirements.

This action is not subject to review under Executive Order (E.O.) 12866. Because a general notice of proposed rulemaking is not required, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., are inapplicable.

This final rule does not contain policies with federalism implications under E.O. 13132. Policies that have federalism implications refers to regulations, legislative comments or proposed legislation, and other policy statements or actions that 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. This final rule does not have federalism implications; therefore, the agency did not follow the additional consultation procedures outlined in E.O. 13132.

This rule does not contain any collections of information that require approval by the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ). This rule will not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations.

E.O. 12898 requires that Federal actions address environmental justice in the decision-making process. In particular, the environmental effects of the actions should not have a disproportionate effect on minority and low-income communities. This rule is not expected to have a disproportionate effect on minority populations or low-income populations.

This final rule makes a taxonomic change relative to a previous listing determination under the ESA to reflect the most recently accepted scientific name based on the best available scientific information about the species' taxonomy and nomenclature. NMFS has concluded that the National Environmental Policy Act (NEPA) does not apply to ESA listing actions, and we conclude that NEPA does not apply to this correction to the identification of the listed species to reflect the best available scientific information (see NOAA Administrative Order 216-6A and the Companion Manual for NOAA Administrative Order 216-6A, regarding Policy and Procedures for Compliance with the National Environmental Policy Act and Related Authorities).

A complete list of references is available on our website at: https://www.fisheries.noaa.gov/action/.

For the reasons set out in the preamble, NMFS amends 50 CFR part 223 as follows:

NMFS published final 2024 specifications for the Atlantic Herring Fishery Management Plan on March 4, 2024 (89 FR 15482), establishing the 2024 annual catch limit (ACL) and area sub-ACLs. Table 1 shows the current herring specifications for 2024 and the specifications as revised by this action for the remainder of the calendar year.

The NMFS Regional Administrator tracks herring landings in the New Brunswick weir fishery each year. The regulations at 50 CFR 648.201(h) require that if the New Brunswick weir fishery landings through October 1 are determined to be less than 2,722 mt, then NMFS subtracts 1,000 mt from the management uncertainty buffer and reallocates that amount to the ACL and Area 1A sub-ACL. When such a determination is made, NMFS is required to notify the New England Fishery Management Council and publish the ACL and Area 1A sub-ACL adjustment in the Federal Register .

Information from Canada's Department of Fisheries and Oceans indicates that the New Brunswick weir fishery landed 930 mt of herring through October 1, 2024. Therefore, the Regional Administrator determined that, effective upon notification filing in the Federal Register , 1,000 mt will be reallocated from the management uncertainty buffer to the Area 1A sub-ACL and the ACL. This 1,000 mt reallocation increases the Area 1A sub-ACL from 5,504 mt to 6,504 mt and the ACL from 19,141 mt to 20,141 mt for the remainder of 2024.

Additionally, NMFS will use the adjusted allocations when we project whether catch from Area 1A will reach 92 percent of the Area 1A sub-ACL, or whether overall herring catch will reach 95 percent of the ACL. When Area 1A catch is projected to reach 92 percent of the Area 1A sub-ACL, catch from this area is reduced to 2,000 lb (907.2 kg) per trip, per calendar day. When overall catch is projected to reach 95 percent of the ACL, then catch in or from all herring management areas is limited to 2,000 lb (907.2 kg) per trip, per calendar day.