Large-scale financial crises have demonstrated the destabilizing effect that severe stress can have on financial entities, capital markets, the Federal banking system, and the U.S. and global economies. This is particularly true when a crisis places severe stress on large, complex financial institutions due to the systemic and contagion risks that they pose. For example, during the 2008 crisis, the Office of the Comptroller of the Currency (OCC) observed that many financial institutions were not prepared to respond effectively to the financial effects of severe stress. The lack of or inadequate planning threatened the viability of some financial institutions, and many were forced to take significant actions without the benefit of a well-developed plan for recovery.

For the OCC, this experience highlighted the importance of large, complex banks having strong risk governance frameworks, including plans for how to respond quickly and effectively to, and recover from, the financial effects of severe stress. The agency recognized that this type of advance planning would reduce a bank's risk of failure and increase the likelihood that it would return to a position of financial strength and viability following severe stress.

On September 29, 2016, the OCC issued Guidelines Establishing Standards for Recovery Planning by Certain Large Insured National Banks, Insured Federal Savings Associations, and Insured Federal Branches (Guidelines). 1 Under the Guidelines, an insured national bank, insured Federal savings association, or insured Federal branch (bank) subject to the standards (covered bank) should have a recovery plan that includes (1) quantitative or qualitative indicators of the risk or existence of severe stress that reflect its particular vulnerabilities; (2) a wide range of credible options that it could undertake in response to the stress to restore its financial strength and viability; and (3) an assessment and description of how these options would affect it. The Guidelines provide that a recovery plan should also address (1) the covered bank's overall organizational and legal entity structure and its interconnections and interdependencies; (2) procedures for escalating decision-making to senior management or the board of directors or an appropriate committee thereof (board); (3) management reports; (4) communication procedures; and (5) any other information the OCC communicates in writing. The Guidelines also set forth the responsibilities of management and the board with respect to the covered bank's recovery plan.

The 2016 Guidelines applied to banks with total consolidated assets of $50 billion or more. In 2018, the OCC amended the Guidelines to raise the threshold to $250 billion based on its view, at that time, that these larger, more complex, and potentially more interconnected banks presented greater systemic risk to the financial system and would benefit most from recovery planning. 2

In March 2023, several insured depository institutions (IDIs) with total consolidated assets of $100 billion or more experienced significant withdrawals of uninsured deposits in response to underlying weaknesses in their financial position and failed. These events highlighted the risk, complexity, and interconnectedness of banks with average total consolidated assets between $100 billion and $250 billion and underscored that it is important for banks in this size range (which are not covered by the current Guidelines) to develop and maintain recovery plans to respond to the financial effects of severe stress.

In addition, since the issuance of the Guidelines in 2016, the agency has examined covered banks' recovery planning processes and reviewed numerous recovery plans. Based on this experience, the OCC has identified areas where the current Guidelines should be strengthened.

To address these issues, on July 3, 2024, the OCC published a proposal to expand the Guidelines to apply to banks with average total consolidated assets of $100 billion or more; incorporate a testing standard; and clarify the role of non-financial (including operational and strategic) risk in recovery planning. 3 The OCC received five comments on the proposal. Two comments were from banks, one was from an individual, one was from two trade associations, and one was from a non-profit organization. 4 These comments are addressed in detail in the next section.

Definition of covered bank. The current Guidelines generally apply to banks with average total consolidated assets of $250 billion or more. Based on the OCC's observations during the IDI failures in 2023, the agency proposed to expand the Guidelines to apply to banks with average total consolidated assets of $100 billion or more. 5 To make this change, the OCC proposed to revise the definition of “covered bank” in paragraph I.E.3. of the current Guidelines.

The OCC received several comments on this proposed change. While one commenter supported the proposed $100 billion threshold, another commenter suggested a $150 billion threshold. Commenters also recommended that the OCC include metrics in addition to asset size in its definition of covered bank, periodically adjust the threshold for inflation, notify covered banks when they become subject to the Guidelines, and tailor the Guidelines based on covered banks' size and complexity.

The OCC continues to believe that the $100 billion threshold is appropriate. As noted above, the agency has observed that banks at or above this size generally have a level of risk, complexity, and interconnectedness at which recovery planning is most beneficial. Narrowing the threshold to $150 billion would exclude some of these banks. With respect to additional metrics, the reservation of authority in paragraph I.C. of the Guidelines provides the OCC with sufficient flexibility to determine, based on factors other than asset size, that a bank is highly complex or otherwise presents a heightened risk and, thus, should be subject to the Guidelines. 6

Regarding an inflation adjustment, the OCC has determined that it does not need to include this provision in the Guidelines, as the agency can revisit and amend the threshold through the rulemaking process as appropriate. The OCC has also concluded that it is not necessary to notify a bank when it becomes a covered bank because this is determined based on a bank's own Consolidated Reports of Condition and Income (Call Report) data. 7 Finally, the current Guidelines specifically state that each covered bank's recovery plan should be “appropriate for its individual size, risk profile, activities, and complexity,” and thus, they are inherently tailored. 8

Therefore, the OCC is adopting the changes to the definition of “covered bank” as proposed.

Calculation of the threshold. The current Guidelines define “average total consolidated assets” in paragraph I.E.1. as “the average total consolidated assets of the bank or the covered bank,” as reported on its Call Report for the four most recent consecutive quarters. The OCC proposed a clarifying change to this definition to refer to the average “of” total consolidated assets of the bank or covered bank. This change was intended to clarify that the calculation of “average total consolidated assets” for purposes of the Guidelines is based on the “total assets” line, not the “average total consolidated assets” line, of the Call Report. 9 This change could have affected the quarter in which a bank became a covered bank and would have been consistent with the OCC Guidelines Establishing Heightened Standards for Certain Large Insured National Banks, Insured Federal Savings Associations, and Insured Federal Branches. 10 The OCC did not receive any comments on this proposed change and adopts it as proposed.

Reservation of authority. The reservation of authority in paragraph I.C.1. of the current Guidelines provides that the OCC has the discretion to apply the Guidelines, in whole or in part, to a bank with average total consolidated assets of less than $250 billion if it determines that the bank is highly complex or otherwise presents a heightened risk that warrants application of the Guidelines. 11 Consistent with the proposed threshold change described above, the proposal would have allowed the agency to apply the Guidelines to a bank with average total consolidated assets of less than $100 billion in these circumstances. 12

The OCC received one comment on this proposed change, which stated that the reservation of authority should not be used for banks with under $100 billion in average total consolidated assets because recovery planning addresses issues similar to those already addressed in other contexts ( e.g., capital planning and stress testing). The OCC continues to believe that the agency should have the flexibility to apply the Guidelines to banks below the $100 billion threshold based on whether the bank is highly complex or otherwise presents a heightened risk. For this reason, the OCC is adopting this change as proposed.

Testing generally. As stated above, the OCC has many years of experience with administering the Guidelines, including reviewing covered banks' recovery plans. During this period, the agency has observed that covered banks would benefit from testing their recovery plans, which would allow them to proactively identify and address any weaknesses or deficiencies before they experience severe stress. This process would help a covered bank determine that its recovery plan is an effective tool that can realistically help restore the bank to financial strength and viability in response to severe stress. Not surprisingly, testing is already a key component of other regulatory frameworks addressing the stress continuum ( e.g., contingency funding planning  13 and stress testing  14 ).

For these reasons, the OCC proposed to add a testing provision as a new paragraph II.D. of the Guidelines, which stated that a covered bank should validate the effectiveness of its recovery plan. The preamble explained that a covered bank may do this by simulating severe financial and non-financial stress scenarios ( e.g., the scenarios used to develop the plan) to confirm that the plan is likely to work as intended. This testing should include, for example, ensuring that the plan's triggers appropriately reflect the covered bank's particular vulnerabilities and will, in practice, provide timely notice of increasingly severe stress, ranging from warnings of the likely occurrence of severe stress to its actual existence. Testing should also enable management and the board to verify that the covered bank has identified credible options that it is prepared to carry out during a period of severe stress. It should provide management and the board with similar assurances regarding other elements of the plan and, ultimately, the plan as a whole. The proposal did not specify a testing format or methodology but stated that testing should be risk-based and reflect the covered bank's size, risk profile, activities, and complexity.

The OCC received three comments on its proposed testing provision. One commenter stated that testing should be a flexible, risk-based “capabilities assessment” ( i.e., an assessment of a covered bank's capability to implement its recovery plan in a timely manner). The commenter also expressed concern that validation was not defined or explained and could require a covered bank to prove its plan's effectiveness by, for example, actually executing a recovery plan option ( e.g., divesting a business line). The commenter also argued that the inclusion of scenario analysis would duplicate the process that a covered bank used to develop or update a recovery plan. Another commenter supported the addition of testing to the Guidelines but stated that the OCC should provide more specific directions.

The OCC disagrees with several of these comments. While a capabilities assessment is an important aspect of testing, it is insufficient on its own to achieve the purpose of testing. For example, a capabilities assessment would not necessarily help a covered bank identify gaps in its recovery plan ( e.g., missing triggers or options) or determine if the plan can realistically help to restore the bank to financial strength and viability during periods of severe stress. With respect to the concept of validation, the OCC is using the term to convey that testing should confirm, to the extent possible, that the plan can accomplish its intended goals. Naturally, validation does not necessarily mean that a covered bank should actually execute a recovery option as part of testing. With respect to scenario analysis, the proposal would not have directed covered banks to use a specified testing format or methodology. Therefore, one covered bank could determine that a scenario analysis is an informative component of testing, while another may decide that it would unnecessarily duplicate its process for developing and updating its recovery plan. Accordingly, the OCC makes no change in the final Guidelines in response to these comments.

However, the OCC agrees that testing should be risk-based. A risk-based standard will provide each covered bank with the flexibility to develop and implement a testing framework that is consistent with its individual characteristics. To reflect this, the OCC is amending the final Guidelines to state that testing “should be appropriate for the bank's individual size, risk profile, activities, and complexity, including the complexity of its organizational and legal entity structure” and declines to establish a more prescriptive testing standard.

Testing of elements. The proposal stated that testing should include validation of the effectiveness of each element of the plan. 15 Two commenters questioned how a bank would validate the effectiveness of key aspects of recovery planning ( e.g., the “Overview of covered bank,” which describes a covered bank's overall organizational and legal entity structure and its interconnections and interdependencies). The OCC agrees that it may not be possible to validate the effectiveness of each plan element, particularly descriptive elements ( e.g., the covered bank's overview). The agency believes, however, that a covered bank should consider each element of its recovery plan as part of testing to validate the effectiveness of the overall plan. This consideration may include, for example, assessing the effectiveness, completeness, or accuracy of each element, as appropriate. To address any confusion, the OCC has revised the final Guidelines to state: “Testing should validate the effectiveness of the recovery plan, including by considering each element set forth in paragraph II.B. of this appendix.”

Frequency of testing. The proposed testing provision provided that a covered bank should test its recovery plan periodically but not less than annually. Two commenters generally agreed that annual testing is appropriate while another commenter suggested that testing should be conducted at intervals and along timelines that are appropriate for each bank. In addition, a commenter said that the testing should be conducted in connection with, or as part of, resolution planning or other business-as-usual testing to avoid unnecessary duplication and that a provision for specific testing in response to a material change is unnecessary if testing is risk-based.

The OCC continues to believe that annual testing is appropriate and has concluded that a covered bank should also test its recovery plan following any significant changes to the recovery plan made in response to a material event. This frequency will ensure that management and the board can consider the results of testing during their recovery plan reviews under paragraphs III.A. and B. of the Guidelines, respectively. 16 Within this framework, the final Guidelines provide each bank with flexibility regarding when to test its plan, including whether to align this testing with other types of testing or to engage in continuous or regular testing throughout the testing cycle, provided that the bank meets the testing standard in the Guidelines. The OCC also reiterates that it does not expect a covered bank to consider every component of each element during each testing cycle ( e.g., considering the trigger element during a cycle does not necessarily mean considering every trigger during that cycle). Rather, as noted above, testing should be risk-based. Therefore, the final Guidelines provide that “Each covered bank should test its recovery plan periodically but not less than annually and following any significant changes to the recovery plan made in response to a material event.”

Plan updates following testing. Finally, the proposed testing provision provided that a covered bank should revise its recovery plan as appropriate following testing. One commenter stated that the OCC should not require a bank to both test and make changes to its recovery plan based on the result of the testing in the same testing cycle. The OCC believes that covered banks should take a risk-based approach to updating their recovery plans following testing. For example, if testing reveals a critical deficiency in the plan, the covered bank should update it as soon as feasible. However, for less significant deficiencies, it may be appropriate to delay updates until the next annual review cycle. Therefore, the OCC adopts this provision of the Guidelines as proposed.

In the OCC's experience with covered banks' implementation of the Guidelines, banks have generally been successful in considering and addressing financial risks in their recovery plans. For example, many covered banks' recovery plans address changes to the bank's financial position, such as profitability, funding sources, liquidity ratios, and capital ratios. The OCC has observed, however, that covered banks have been less consistent in considering or addressing non-financial risk, such as operational and strategic risks. By focusing a recovery plan exclusively on financial risks while neglecting non-financial risks, the covered bank may overlook the very real threats that non-financial risks can pose to its financial strength and viability.

Because the current Guidelines do not specifically reference non-financial risk, the proposal contained changes to ensure that covered banks appropriately address these risks in their recovery plans. Specifically, the OCC proposed to add language to paragraph II.A. stating that a covered bank “should appropriately consider both financial risk and non-financial risk (including operational and strategic risk).” The reference to financial risk was not because covered banks had not appropriately considered this type of risk but to highlight that both types of risk should be considered. The OCC also proposed conforming changes to the definitions of “recovery” and “trigger” in paragraphs I.E.4. and I.E.6., respectively, and to the recovery plan elements of “trigger” and “impact assessment” in paragraphs II.B.2. and II.B.4., respectively. 17 Finally, to provide an additional example of an operational risk plan with which a covered bank should align its recovery plan, the OCC proposed adding a reference to “resilience program” in paragraph II.C.

The OCC received one comment on the proposed non-financial risk language, which agreed that this type of risk should be considered but also observed that financial risk and non-financial risk have distinct roles in recovery planning. In particular, the commenter noted that the role of, and a covered bank's response to, non-financial risk differs from its response to financial risk and that breaches of non-financial triggers should not automatically lead to activation of the recovery plan and execution of recovery options.

The OCC agrees that financial risk and non-financial risk differ. However, both are important aspects of recovery planning, and the Guidelines provide covered banks with sufficient flexibility to account for these differences. Each covered bank's recovery plan can and should address financial risk and non-financial risk in a manner appropriate for that bank, including by ensuring that its recovery plan reflects their differences. Moreover, while the breach of any trigger (whether financial or non-financial) should always be escalated for purposes of initiating a response, a covered bank should not view a specific trigger as necessitating the execution of a particular option. Rather, a covered bank should use its judgment to determine what options, if any, to undertake during a period of severe stress. Therefore, the OCC is adopting these changes as proposed.

When the OCC issued the proposal, it understood that covered banks would need time to implement the proposed changes. To this end, the agency proposed to amend paragraph I.B. of the Guidelines, entitled “Compliance date,” to provide affected banks with sufficient time to comply.

Specifically, under the proposal, a bank that is a covered bank under the current Guidelines would have had 12 months from the effective date of the amendments to comply with the changes. A bank that has $100 billion or more but less than $250 billion in average total consolidated assets on the effective date of the amendments to the Guidelines would have had to comply with the Guidelines within 12 months of the effective date, except for the testing requirements with which the bank would have had to comply within 18 months. A bank or other financial institution that is not a covered bank on the effective date of the amended Guidelines but that subsequently becomes a covered bank would have had 12 months from the date on which it became a covered bank to comply with the Guidelines, except that it would have had 18 months to comply with the testing requirements. 18

The OCC received several comments on this topic. Two commenters stated that newly covered banks should have more time to comply ( e.g., 24 months), while another suggested that the proposal provided newly covered banks with too much time because of synergies with resolution and contingency planning requirements. One commenter said that the final Guidelines should have (1) one compliance date for a covered bank to develop the testing framework and (2) another compliance date to conduct the testing and, if necessary, revise its recovery plan based on the testing results. Finally, one commenter suggested that the OCC's compliance dates should not overlap with the FDIC's resolution planning rule.

The OCC agrees with commenters that covered banks should have time to both develop a testing framework and conduct testing. In order to provide sufficient time for both, the OCC is revising the proposed compliance dates. Specifically, under the final Guidelines, banks that are currently covered banks will have 12 months to amend their recovery plans to address non-financial risk and an additional 6 months to comply with the new testing provision. Banks that are not covered by the current Guidelines but that become covered banks on the effective date of the final Guidelines will have 12 months to develop their recovery plan and an additional 12 months to comply with the testing provision. Banks or other financial institutions that become covered banks after the effective date of the final Guidelines will have 12 months to develop their recovery plan and an additional 12 months to comply with the testing provision. These compliance dates provide banks and other financial institutions that are or become covered banks under the final Guidelines with sufficient time and flexibility to both develop a testing framework and conduct testing, and based on our supervisory experience, they strike the appropriate balance between the time needed to satisfy the final Guidelines and the risks that recovery planning is designed to address. The agency believes this addresses the other comments about the proposed compliance dates discussed above. 19

In the proposal, the OCC also asked whether it should reserve authority to adjust an otherwise-applicable compliance date. In response, one commenter noted that if the OCC did so, it should reserve authority to both lengthen and shorten the applicable timeframes but should not specifically reference the context in which it might be appropriate to use this reservation of authority because the referenced examples could be interpreted as highly risky.

The OCC has determined that an additional reservation of authority for compliance date adjustments is unnecessary, as the agency already has sufficient tools to address this issue. For example, as a condition of approving a merger, the OCC can require that a bank comply with the Guidelines on a timeline other than the one specified in paragraph I.B. Therefore, the final Guidelines do not contain any changes in response to this question.

In addition to the changes discussed above, the OCC has made technical and clarifying changes to the final Guidelines.

Under the Paperwork Reduction Act of 1995 (PRA), 20 the OCC may not conduct or sponsor, and a respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The OMB previously approved the collection of information in the current Guidelines, which are found in 12 CFR part 30, appendix E, at paragraphs II.B., II.C., and III. Specifically, paragraph II.B. lists the elements of the recovery plan, which are an overview of the covered bank; triggers; options for recovery; impact assessments; escalation procedures; management reports; communication procedures; and other information. Paragraph II.C. addresses the relationship of the plan to other covered bank processes and coordination with other plans, including the processes and plans of its bank holding company. Paragraph III. outlines management's and the board's responsibilities.

The final Guidelines include changes to the information collection. 21 Specifically, the threshold for applying the final Guidelines is reduced from $250 billion to $100 billion in average total consolidated assets. The final Guidelines also establish a testing standard, which provides that a covered bank should test its recovery plan. Additionally, the final Guidelines clarify the role of non-financial risk (including operational and strategic risk) in recovery planning.

The OCC has submitted the following revised information collection to the OMB for review.

Title: OCC Guidelines Establishing Standards for Recovery Planning by Certain Large Insured National Banks, Insured Federal Savings Associations, and Insured Federal Branches.

OMB Control No.: 1557-0333.

Affected Public: Businesses or other for-profit organizations.

Estimated Burden:

Frequency of Response: On occasion.

Total Number of Respondents: 21.

Total Burden per Respondent: 32,017 hours. 22

Total Burden for Collection: 672,360 hours.

The OCC did not receive any PRA-related comments. The agency has a continuing interest in the public's opinions of information collections. Within 30 days of publication of this document, commenters may submit comments regarding the burden estimate, or any other aspect of this collection of information, including suggestions for reducing the burden, to the address listed in the ADDRESSES caption in the Notice of Proposed Rulemaking. All comments will become a matter of public record. Written comments and recommendations for the information collection should be sent within 30 days of publication of this document to www.reginfo.gov/public/do/PRAMain. Find this information collection by selecting “Currently under 30-day Review—Open for Public Comments” or using the search function.

In general, the Regulatory Flexibility Act (RFA)  23 requires an agency, in connection with a proposed and final rulemaking, to prepare a Regulatory Flexibility Analysis describing the impact of the rule on small entities, which are defined by the U.S. Small Business Administration for purposes of the RFA to include commercial banks and savings institutions with total assets of $850 million or less and trust companies with total assets of $47 million or less. However, a Regulatory Flexibility Analysis is not required if the agency certifies that the rulemaking would not have a significant economic impact on a substantial number of small entities and publishes its certification and a short explanatory statement in the Federal Register along with its rulemaking.

The OCC currently supervises approximately 942 IDIs, 24 of which 636 are small entities. 25 The final Guidelines do not impact any small entities because they only apply to banks with average total consolidated assets of $100 billion or more. Accordingly, the OCC certifies that the final Guidelines will not have a significant economic impact on a substantial number of small entities.

Under section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA), 26 the OCC prepares a budgetary impact statement before promulgating a rulemaking that includes any Federal mandate that may result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more (currently $183 million, as adjusted annually for inflation) in any one year. The OCC has determined that the expenditures associated with the final Guidelines' mandates will be approximately $86.7 million. Therefore, the OCC concludes that the final Guidelines will not result in an expenditure of $183 million or more annually by State, local, and Tribal governments, in the aggregate, or by the private sector. Accordingly, the OCC has not prepared the budgetary impact statement described above.

For purposes of the Congressional Review Act, 27 the OMB determines whether a final rule constitutes a major rule. If a rule is deemed a major rule by the OMB, the Congressional Review Act generally provides that the rule may not take effect until at least 60 days following its publication. The Congressional Review Act defines a “major rule” as any rule that the Administrator of the Office of Information and Regulatory Affairs of the OMB finds has resulted in or is likely to result in (1) an annual effect on the economy of $100 million or more; (2) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies or geographic regions; or (3) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. The OCC submitted the final Guidelines to the OMB for this major rule determination, and the OMB determined that the final Guidelines are not a major rule. As required by the Congressional Review Act, the OCC is submitting the appropriate report to Congress and the Government Accountability Office for review.

The Administrative Procedure Act  28 requires that publication of a substantive rule generally be made not less than 30 days before its effective date. Consistent with this requirement, the final Guidelines will be effective on January 1, 2025, which is more than 30 days after their publication in the Federal Register .

Pursuant to section 302(a) of the Riegle Community Development and Regulatory Improvement Act of 1994, 29 in determining the effective date and administrative compliance requirements for new regulations that impose additional reporting, disclosure, or other requirements on IDIs, the OCC considers, consistent with the principles of safety and soundness and the public interest: (1) any administrative burdens that the rule will place on depository institutions, including small depository institutions and customers of depository institutions and (2) the benefits of a rulemaking. The OCC has considered the administrative burdens that the final Guidelines will place on IDIs, including small depository institutions and their customers, and the benefits of the final Guidelines. The agency believes that the effective date of January 1, 2025, is appropriate.

For the reasons set forth in the preamble, and under the authority of 12 U.S.C. 93a and 12 U.S.C. 1831p-1, chapter I of title 12 of the Code of Federal Regulations is amended as follows:

On December 20, 2023, the FDIC Board of Directors adopted a final rule revising the sign and advertising regulations implementing section 18(a) of the Federal Deposit Insurance Act. 1 On January 18, 2024 (89 FR 3504), the final rule was published in the Federal Register .

The final rule became effective on April 1, 2024, and required full compliance with the rule by January 1, 2025. Based upon feedback from IDIs and other banking industry participants, the FDIC understands that some IDIs would find it beneficial to have additional time beyond the January 1, 2025, compliance date to implement the new regulatory requirements under subpart A of 12 CFR part 328. In particular, some IDIs have reported they continue to update online systems and platforms, and have requested additional time to meet the new requirements under subpart A. To provide additional opportunity for IDIs to put in place processes and systems, and make technological updates, the FDIC is delaying the compliance date for amendments to subpart A of 12 CFR part 328 from January 1, 2025, to May 1, 2025. The compliance date for the final rule amendments to subpart B of 12 CFR part 328 remains January 1, 2025.

The FDIC has also received a number of questions from industry participants regarding the application of the new requirements. In response, the FDIC has published two sets of “Questions and Answers”  2 addressing certain issues raised by industry participants. The FDIC has continued to receive requests for additional clarity. The FDIC will continue to evaluate questions that have been received and will endeavor to make any additional potential “Questions and Answers” publicly available by November 30, 2024, to facilitate effective compliance by the May 1, 2025, compliance date.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Deutsche Aircraft GmbH Model 328-100 and 328-300 airplanes. The NPRM published in the Federal Register on July 17, 2024 (89 FR 58089). The NPRM was prompted by AD 2024-0051, dated February 23, 2024, issued by EASA, which is the Technical Agent for the Member States of the European Union (EASA AD 2024-0051) (also referred to as the MCAI). The MCAI states there have been reports of a broken attachment eyebolt in a Collins Aerospace JB6 Commuter Class passenger seat. The eyebolt is the connection between the reclining mechanism and the seat structure and connects the seat belt to the seat structure. Broken attachment eyebolts, if not detected and corrected, could prevent the correct operation of the safety belts, possibly resulting in injuries to seat occupants.

In the NPRM, the FAA proposed to require a one-time detailed inspection of each affected part, and applicable corrective actions, and to limit the installation of affected parts, as specified in EASA AD 2024-0051. The FAA is issuing this AD to address the unsafe condition on these products.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2024-1889.

The FAA received no comments on the NPRM or on the determination of the cost to the public.

This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on this product. Except for minor editorial changes, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

EASA AD 2024-0051 specifies a one-time detailed inspection of affected eyebolt and spreader for correct installation and discrepancies ( i.e., cracks, traces of aluminum flakes or remainders of ripped-out threads in the tip threads, and damaged thread runs), and applicable corrective actions (obtaining and following repair instructions and replacing the affected parts). EASA AD 2024-0051 also specifies an affected part may be installed provided, before installation, that part passed an inspection (no damage detected).

This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES section.

The FAA estimates this AD affects 30 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates the following costs to do any necessary on-condition action that would be required based on the results of any required actions. The FAA has no way of determining the number of aircraft that might need this on-condition action:

The FAA has received no definitive data on which to base the cost estimates for the on-condition repairs specified in this AD.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Will not affect intrastate aviation in Alaska, and

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 737-8 and Model 737-9 airplanes. The NPRM published in the Federal Register on February 14, 2024 (89 FR 11231). The NPRM was prompted by a Boeing review of the SPCU design where a single point of failure exists internal to the SPCU. In the NPRM, the FAA proposed to require installing four diodes and changing wire bundles in the P5 panel, as well as performing installation and power tests and applicable on-condition actions. The FAA is issuing this AD to address a potential single point of failure in the SPCU, which can result in a non-latent loss of the entire battery bus and consequent un-annunciated loss of control and indication of both engine anti-ice (EAI) systems.

The FAA received comments from eight commenters who supported the NPRM without change.

The FAA received additional comments from Alaska Airlines and two individuals. The following presents the comments received on the NPRM and the FAA's response to each comment.

Alaska Airlines requested that the proposed AD be revised to include a “Credit for Previous Actions” paragraph that gives credit as specified in paragraph (h)(2), “Exceptions to Service Information Specifications,” of the proposed AD. Alaska requested credit for “ACTION 3” in the Action column of the table in the “Compliance” paragraph of Boeing Alert Requirements Bulletin 737-30A1083 RB, dated November 18, 2022, for airplanes on which the requirements bulletin was embodied prior to the effective date of this AD.

The FAA disagrees with revising this AD to include a “Credit for Previous Actions” paragraph in this AD. Paragraph (f), “Compliance,” of this AD provides credit for required actions performed before the effective date of this AD. The FAA has not changed this AD as a result of this comment.

An individual was supportive, but requested clarification of whether the proposed AD adequately addresses the unsafe condition to prevent the single point of failure addressed by the proposed AD. The commenter also questioned what is being done so this condition does not occur again, and whether this is the only issue with this airplane design. The commenter also requested clarification of whether the affected airplanes would be grounded until the proposed AD actions are completed.

The FAA worked with Boeing to develop appropriate actions, i.e., the diode installation and wire bundle change, using the procedures specified in Boeing Alert Requirements Bulletin 737-30A083 RB, dated November 18, 2022, to address the identified unsafe condition in this AD. This particular issue is the only one addressed by this AD. The FAA continuously evaluates operator and manufacturer reports and other data in order to promote safe type certification and production. Operators are required to comply with all applicable actions of an AD within the required compliance time and cannot later undo those required actions. The FAA's safety analysis has determined that the compliance time for corrective action in this AD provides an acceptable level of safety. The FAA has not changed this AD as a result of this comment.

Another individual stated that the AD “prompted a review of” the SPCU and “found a design flaw.” The commenter acknowledged that the proposed AD would address the underlying problem, but questioned how long the condition has existed, whether the SPCU review addresses all systems on these airplanes, and whether affected airplanes remain in service until the concerns are addressed. This commenter stated that a deeper review into other models and ways to address these issues must be investigated.

The FAA provides the following clarification. This AD did not prompt the SPCU review; rather, after the SPCU review conducted by Boeing, the FAA determined that an AD was necessary and appropriate to address the unsafe condition. The FAA continuously receives and evaluates performance and safety data from operators and manufacturers on all type-certificated airplanes. The FAA takes corrective action—whether advisory such as an advisory circular or mandatory such as an AD—as warranted by the facts. The FAA has not changed this AD as a result of this comment.

The FAA reviewed the relevant data, considered any comments received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for minor editorial changes, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

The FAA reviewed Boeing Alert Requirements Bulletin 737-30A083 RB, dated November 18, 2022. This material specifies procedures for installing four diodes and changing wire bundles in the P5 panel, as well as performing an anti-ice diode installation test and an engine anti-ice and wing anti-ice power test and applicable on-condition actions. On-condition actions include doing applicable corrective actions until the tests are passed.

This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 205 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA has received no definitive data on which to base the cost estimates for the on-condition actions specified in this AD.

The FAA has included all known costs in its cost estimate. According to the manufacturer, however, some or all of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected operators.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Will not affect intrastate aviation in Alaska, and

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2023-13-11, Amendment 39-22496 (88 FR 50011, August 1, 2023) (AD 2023-13-11). AD 2023-13-11 applied to certain AVOX Systems Inc. (formerly Scott Aviation) oxygen cylinder and valve assemblies, and oxygen valve assemblies, installed on but not limited to various transport airplanes. AD 2023-13-11 was prompted by reports of cylinder and valve assemblies having oxygen leakage from the valve assembly vent hole, caused by the absence of a guide that maintains appropriate spacing between certain parts, and by a determination that additional assemblies and parts are affected by the unsafe condition addressed by AD 2022-04-09, Amendment 39-21951 (87 FR 10958, February 28, 2022) (AD 2022-04-09) (which was superseded by AD 2023-13-11).

The NPRM published in the Federal Register on March 25, 2024 (89 FR 20558). The NPRM was prompted by a report that the manufacturer identified additional assemblies and parts subject to the unsafe condition. In the NPRM, the FAA proposed to continue to require the actions specified in AD 2023-13-11 and require similar actions for those additional assemblies and parts. The FAA is issuing this AD to address oxygen leakage from the cylinder and valve assemblies, which could result in decreased or insufficient oxygen supply during a depressurization event; and heating or flow friction, which could cause an ignition event in the valve assembly.

The FAA received comments from four commenters, including Alaska Airlines (Alaska), American Airlines, Cathay Pacific Airways, Delta Air Lines (Delta), and SIAEC (SIA Engineering Company). The following presents the comments received on the NPRM and the FAA's response to each comment.

Alaska requested adding the required revisions of the material (identified in paragraphs (l)(1) through (3) of the proposed AD) to the group of material identified as acceptable material in paragraph (p)(3) of the proposed AD for actions accomplished before the effective date of this AD.

The FAA disagrees with the request to revise paragraph (p)(3) of this AD. A global alternative method of compliance (AMOC) letter, 753-23-00200, was issued for AD 2023-13-11 that identified the required material in paragraphs (l)(1) through (3) of this AD as an acceptable AMOC. Accomplishment of the required material before the effective date of this AD to comply with the requirements of this AD is addressed by paragraph (f) of this AD. Paragraph (f) of this AD allows for the use of the required material before the effective date of this AD. No change to the AD has been made in this regard.

SIAEC asked if credit can be granted for the actions specified in paragraphs (h) and (i) of the proposed AD if Revision 03 of the material was used.

The FAA agrees to clarify. Paragraphs (h) and (i) of this AD still reference Revision 03 of the material as the primary means of compliance for those parts identified in Appendices 1 or 2 of the referenced material. Paragraph (p) of this AD references the other revision levels that are acceptable for credit if they were used before certain effective dates. Paragraph (f) of this AD allows for the use of the required material before the effective date of this AD. No change to this AD is necessary in this regard.

American Airlines requested revising the applicability of the proposed AD to apply to all serial numbers of the affected part numbers, instead of adding groups of additional serial numbers in superseding ADs. Alaska requested revising the requirements for the serial number inspection, in particular, the ones in Appendix 3 of the required material referenced in paragraph (l) of the proposed AD. Alaska explained that the reading and recording of the serial numbers in three different places on the bottle leads to numerous discrepancies by personnel, which then leads to additional time spent trying to review all the numbers and identify the affected airplanes, possibly leading to affected bottles remaining on the airplane longer before being removed. Alaska suggested that a check for the manufacturer date, and then if a bottle has an affected manufacture date, an inspection to determine if the valve has a blue dot, would be sufficient to determine if an affected bottle is installed on the airplane. Alaska also suggested that once an affected bottle is found, the operator could then choose to accomplish the gap check and record the required serial numbers, or assume all affected bottles are suspect, and then send any suspected bottle back to the vendor instead of doing a gap check and subsequent serial number record-keeping.

The FAA does not agree to expand the applicability. Revising the applicability to refer to the date of manufacture instead of the serial numbers that must be inspected would increase the burden on some operators. However, operators choosing to inspect all the serial numbers of a part number may apply for an AMOC using the procedures specified in paragraph (q) of this AD. No changes to this AD have been made in this regard.

Alaska requested a revision to extend the compliance time to at least 90 days due to the large increase in number of affected bottles and potential effect on the limited supply of spare bottles. Alaska reasoned that a compliance time of 90 days would help repair vendors turn around the repair of faulty bottles in a timely manner. Although Alaska did not specify what action or paragraph the referenced compliance time would be for, the FAA infers that Alaska is referencing the replacement compliance time specified in paragraph (m)(2) of the proposed AD.

The FAA disagrees with the request. A global AMOC letter, 753-23-00200, was provided in December 2023 to provide relief for using later revisions of the material referenced in AD 2023-13-11, so knowledge of the additional numbers of affected bottles identified in the later revisions of the material would have been available since December 2023. In addition, the compliance time for most of the bottles affected by AD 2023-13-11 would have elapsed in early November 2023. Replacement before further flight ensures that airplanes are not knowingly flying with an unsafe condition. Operators may also apply for an AMOC under the provisions of paragraph (q) of this AD. The FAA has not changed the AD in this regard.

Delta requested that the inspection report that was specified in paragraphs (j)(1) and (n)(1) of the proposed AD be removed. Delta pointed to guidance in the AD Manual (FAA-IR-M-8040.1C) ( https://drs.faa.gov/browse/excelExternalWindow/66DDD8E1D2E95DB3862577270062AABD.0001 ) that describes the general conditions for requiring inspection reports, and contrasted that with the material's description of the problem with the affected valve assemblies and the proposed AD's proposed requirements as the rationale for removing the inspection report.

The FAA agrees to remove the inspection report that was proposed in paragraphs (j)(1) and (n)(1) of the proposed AD for the reasons provided by the commenter. The subsequent paragraph identifiers have been revised, and the cost estimate has been updated accordingly.

SIAEC stated that there is a discrepancy within the tables of Appendix 3 of Safran Aerosystems Alert Service Bulletin 10015804-35-01, Revision 04, dated November 9, 2023. SIAEC noted that some of the affected valve serial numbers are erroneously listed in the affected “Cylinder Serial #” columns in the tables for the Cylinder and Valve assemblies P/Ns 89794077 and 891511-14.

The FAA agrees there are discrepancies in the serial number lists. Paragraph (l)(1) of this AD has been revised to correct the discrepancies.

Cathay Pacific Airways noted that the expanded serial number list from the latest revision of the Safran/AVOX service bulletins has a manufacturing date range from 2011 to 2017. The commenter asked whether the actions specified in the latest Safran/AVOX service bulletin must be redone on an affected serial number if maintenance can show that the part has been overhauled already.

The FAA contacted Safran for additional information regarding the comment, and provides the following clarification. The “overhaul kit” does not always have the necessary parts and therefore does not meet the intent of this AD. P/N 10015804 is a guide part number. If this part is missing, the gap check will fail. However, if the tank undergoes an overhaul as outlined in the Component Maintenance Manual (specified in paragraph 1.K of the applicable service bulletin), it will be equipped with the necessary guide, reassembled, and tested for leaks and hydrostatic pressure. This process aligns with the intent of this AD.

The FAA corrected the name of the publisher of the material identified in paragraphs (l)(1) through (3) of this AD from AVOX Systems Inc. to Safran Aerosystems. The FAA has also revised references to the manufacturer's name specified throughout this final rule to identify the manufacturer name as published in the most recent material for the affected models.

The FAA reviewed the relevant data, considered any comments received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for minor editorial changes, and any other changes described previously, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

The FAA reviewed the following material. This material specifies procedures for an inspection to determine the serial numbers of the oxygen cylinder and valve assemblies, and the oxygen valve assemblies, a detailed inspection for correct spacing of the gap between the bottom of the packing retainer and top of the valve body on the assemblies, parts marking, inspection report, and return of parts to the manufacturer. These documents are distinct since they apply to different assembly part numbers.

• Safran Aerosystems Alert Service Bulletin 10015804-35-01, Revision 04, dated November 9, 2023.

• Safran Aerosystems Alert Service Bulletin 10015804-35-02, Revision 06, dated August 30, 2023.

• Safran Aerosystems Alert Service Bulletin 10015804-35-03, Revision 05, dated September 29, 2023.

This AD also requires the following material, which the Director of the Federal Register approved for incorporation by reference as of September 5, 2023 (88 FR 50011, August 1, 2023).

• AVOX Systems Inc. Alert Service Bulletin 10015804-35-01, Revision 03, dated June 7, 2021.

• AVOX Systems Inc. Alert Service Bulletin 10015804-35-02, Revision 03, dated March 11, 2022.

• AVOX Systems Inc. Alert Service Bulletin 10015804-35-03, Revision 03, dated June 18, 2021.

This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 3,777 oxygen cylinder and valve assemblies, and oxygen valve assemblies, installed on various transport category airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates the following costs to do any necessary actions that would be required based on the results of the inspection. The FAA has no way of determining the number of aircraft that might need these actions:

The FAA has included all known costs in its cost estimate. According to the manufacturer, however, some or all of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected operators.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Will not affect intrastate aviation in Alaska, and

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Safran Model Makila 1A, Makila 1A1, and Makila 1A2 engines. The NPRM published in the Federal Register on June 20, 2024 (89 FR 51858). The NPRM was prompted by EASA AD 2023-0218, dated December 19, 2023 (EASA AD 2023-0218) (also referred to as the MCAI), issued by EASA, which is the Technical Agent for the Member States of the European Union. The MCAI states that it has been determined that the accumulated service life of certain critical parts was underestimated. To address this potential unsafe condition, the manufacturer published service information that identifies the affected parts and provides instructions for recalculating the service life and replacing the affected parts. The MCAI specifies determining the recalculated service life of the affected parts and replacing if necessary. The MCAI also specifies conditions for installing the affected parts. This unsafe condition, if not addressed, could lead to operation of the affected parts beyond the part life, which could cause the failure of affected parts, possibly resulting in uncontained debris release with consequent damage to the helicopter and reduced control of the helicopter.

In the NPRM, the FAA proposed to require determining the recalculated service life of certain critical parts, replacing the parts if necessary, and specified conditions for installing the parts. The FAA is issuing this AD to address the unsafe condition on these products.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2024-1691.

The FAA received no comments on the NPRM or on the determination of the costs.

These products have been approved by the aviation authority of another country and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for minor editorial changes, this AD is adopted as proposed in the NPRM.

The FAA reviewed EASA AD 2023-0218, which specifies determining the recalculated service life of affected parts and replacing the affected parts, if necessary. EASA AD 2023-0218 also specifies conditions for installing the affected parts. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 0 engines installed on helicopters of U.S. registry.

The FAA estimates the following costs to comply with this AD:

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Will not affect intrastate aviation in Alaska, and

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2023-04-06, Amendment 39-22353 (88 FR 13665, March 6, 2023) (AD 2023-04-06), and AD 2024-04-07, Amendment 39-22686 (89 FR 19234, March 18, 2024). AD 2023-04-06 and AD 2024-04-07 applied to Airbus SAS Model A318-111, -112, -121, and -122 airplanes; Model A319-111, -112, -113, -114, -115, -131, -132, -133, -151N, -153N, and -171N airplanes; Model A320-211, -212, -214, -216, -231, -232, -233, -251N, -252N, -253N, -271N, -272N, and -273N airplanes; and Model A321-111, -112, -131, -211, -212, -213, -231, -232, -251N, -252N, -253N, -271N, -272N, -251NX, -252NX, -253NX, -271NX, and -272NX airplanes. AD 2023-04-06 and AD 2024-04-07 required revising the existing maintenance or inspection program, as applicable, to incorporate additional new or more restrictive airworthiness limitations. The FAA issued AD 2023-04-06 and AD 2024-04-07 to address a safety-significant latent failure.

The NPRM published in the Federal Register on June 18, 2024 (89 FR 51471). The NPRM was prompted by AD 2024-0030, dated January 31, 2024, issued by EASA, which is the Technical Agent for the Member States of the European Union (EASA AD 2024-0030) (also referred to as the MCAI). The MCAI states that new or more restrictive airworthiness limitations have been developed.

In the NPRM, the FAA proposed to require revising the existing maintenance or inspection program, as applicable, to incorporate additional new or more restrictive airworthiness limitations, as specified in EASA AD 2024-0030. The FAA is issuing this AD to address a safety significant latent failure (that is not annunciated), which, in combination with one or more other specific failures or events, could result in a hazardous or catastrophic failure condition.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2024-1685.

The FAA received comments from the Air Line Pilots Association, International (ALPA) who supported the NPRM without change.

The proposed AD did not retain the terminating action specified in paragraph (j) of AD 2024-04-07. The FAA has added that terminating action to paragraph (j) of this AD and redesignated subsequent paragraphs of this AD accordingly.

This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data, considered the comment received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on this product. Except for minor editorial changes, and any other changes described previously, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

EASA AD 2024-0030 specifies procedures for new or more restrictive airworthiness limitations for airplane structures and safe life limits.

This AD also requires EASA AD 2023-0138, dated July 13, 2023, which the Director of the Federal Register approved for incorporation by reference as of April 22, 2024 (89 FR 19234, March 18, 2024).

This AD also requires EASA AD 2022-0091, dated May 20, 2022, which the Director of the Federal Register approved for incorporation by reference as of April 10, 2023 (88 FR 13665, March 6, 2023).

This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 1,898 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates the total cost per operator for the retained actions from AD 2023-04-06 and AD 2024-04-07 to be $7,650 (90 work hours × $85 per work hour) per AD.

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

The FAA estimates the total cost per operator for the new proposed actions to be $7,650 (90 work hours × $85 per work hour).

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Will not affect intrastate aviation in Alaska, and

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2016-08-08, Amendment 39-18484 (81 FR 21711, April 13, 2016) (AD 2016-08-08). AD 2016-08-08 applied to SOCATA (type certificate now held by DAHER) Model MS 880B, MS 885, MS 892A-150, MS 892E-150, MS 893A, MS 893E, MS 894A, MS 894E, Rallye 100S, Rallye 150ST, Rallye 150T, Rallye 235C, and Rallye 235E airplanes.

AD 2016-08-08 was prompted by MCAI originated by European Union Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union. EASA issued AD 2015-0203, dated October 7, 2015 (EASA AD 2015-0203) to correct an unsafe condition identified as fatigue failure of the NLG wheel axle. EASA AD 2015-0203 was prompted by an NLG wheel axle failure that occurred in service. The investigation revealed that this failure was due to fatigue caused by premature wear. EASA AD 2015-0203 required retaining the requirements of Direction Générale de l'Aviation Civile (DGAC) France AD 91-163(A)R2, dated March 30, 1994, which was superseded, but required those actions to be accomplished within reduced intervals.

AD 2016-08-08 required doing repetitive detailed visual inspections of the intersection between the axle radius and the NLG fork area for chafing; doing repetitive dye penetrant inspections on the NLG wheel axle for cracks, distortion, and nicks or wear; corrective actions if necessary; and replacing the NLG wheel axle attachment screws with new screws. The FAA issued AD 2016-08-08 to address chafing and cracking of the NLG wheel axle, which could lead to failure of the NLG with consequent damage to the airplane and/or injury to occupants.

Since the FAA issued AD 2016-08-08, EASA superseded EASA AD 2015-0203 and issued EASA AD 2023-0080, dated April 17, 2023 (EASA AD 2023-0080) (also referred to as the MCAI) to correct an unsafe condition for all DAHER AEROSPACE Model MS 880 B, MS 880 B-D, MS 881, MS 883, MS 884, MS 885, MS 886, MS 887, MS 890 A, MS 890 B, MS 892 A.150, MS 892 B.150, MS 892 E.150, MS 892 E-D.150, MS 893 A, MS 893 B, MS 893 E, MS 893 E-D, MS 894 A, MS 894 E, RALLYE 100 S, RALLYE 100 S-D, RALLYE 100 ST, RALLYE 100 ST-D, RALLYE 110 ST, RALLYE 150 ST, RALLYE 150 ST-D, RALLYE 150 T, RALLYE 150 T-D, RALLYE 150 SV, RALLYE 150 SVS, RALLYE 180 T, RALLYE 180 TS, RALLYE 180 T-D, RALLYE 235 A, RALLYE 235 F, RALLYE 235 E, and RALLYE 235 E-D airplanes.

The MCAI states that it retains the requirements of EASA AD 2015-0203 but introduces a new inspection method and a new design of the NLG wheel axle as a terminating action for the repetitive detailed inspections. You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2024-1480.

The NPRM published in the Federal Register on June 4, 2024 (89 FR 47879). In the NPRM, the FAA proposed to retain none of the requirements of AD 2016-08-08. The NPRM proposed to require repetitively inspecting the NLG wheel axle and, if chafing, cracking, or damage was found, installing the newly designed NLG wheel axle and attachment screws, which would terminate the actions specified in the proposed AD. The NPRM also proposed a magnetic particle inspection after a visual inspection if no damage was found, or when installing an airworthy part that was previously in service. The NPRM also proposed to require repetitively replacing the NLG wheel axle attachment screws.

The FAA received no comments on the NPRM or on the determination of the costs.

The NPRM proposed to require repetitively replacing the NLG wheel axle attachment screws every 2,000 hours time-in-service (TIS). The FAA re-evaluated this requirement and determined that clarification of the intent of this requirement is needed. The FAA revised paragraph (i) of this AD to clarify that any screw found to be distorted, scratched, nicked, or worn during any repetitive inspection required by paragraph (h)(1) of this AD must be replaced before further flight. If no screw is found to be distorted, scratched, nicked, or worn during any repetitive inspection required by paragraph (h)(1) of this AD, all of the NLG wheel axle attachment screws must be replaced initially before exceeding 2,000 hours TIS total on the airplane; before exceeding 2,000 hours TIS since the last time the attachment screws were replaced; or within 50 hours TIS after the effective date of this AD, whichever occurs later, and repetitively thereafter at intervals not to exceed 2,000 hours TIS after the last replacement.

These products have been approved by the aviation authority of another country and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for the change described previously, this AD is adopted as proposed in the NPRM. This change will not increase the economic burden on any operator.

The FAA reviewed Daher Service Bulletin SB 150, Revision 4, dated January 2023. This material specifies procedures for preparing, inspecting, replacing, and reconditioning the NLG wheel axle. This material also specifies procedures for replacing the NLG wheel axle attachment screws.

This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The applicability of the MCAI includes DAHER AEROSPACE Model MS 886, MS 887, MS 890 A, MS 890 B, MS 892 B.150, MS 892 E-D.150, MS 893 B, MS 893 E-D, RALLYE 100 S-D, RALLYE 100 ST, RALLYE 100 ST-D, RALLYE 110 ST, RALLYE 150 ST-D, RALLYE 150 T-D, RALLYE 150 SV, RALLYE 150 SVS, RALLYE 180 T, RALLYE 180 TS, RALLYE 180 T-D, RALLYE 235 A, RALLYE 235 F, and RALLYE 235 E-D airplanes and the applicability of this AD does not because these models do not have an FAA type certificate.

The FAA estimates that this AD affects 32 airplanes of U.S. registry.

The FAA estimates the following costs to comply with this AD:

The FAA estimates the following costs to do any necessary action that would be required based on the results of the inspections. The agency has no way of determining the number of airplanes that might need this action:

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

The FAA has determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Will not affect intrastate aviation in Alaska, and

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

We are adopting an updated Filer Manual, Volume II: “EDGAR Filing,” Version 71 (September 2024) and amendments to 17 CFR 232.301 (“Rule 301”). The updated Filer Manual is incorporated by reference into the Code of Federal Regulations.

The Filer Manual contains information needed for filers to make submissions on EDGAR. Filers must comply with the applicable provisions of the Filer Manual in order to assure the timely acceptance and processing of filings made in electronic format. 1 Filers must consult the Filer Manual in conjunction with our rules governing mandated electronic filings when preparing documents for electronic submission.

EDGAR is being updated in EDGAR Release 24.3 and corresponding amendments to Volume II of the Filer Manual are being made to reflect these changes, as described below. 2

On January 24, 2024, the SEC adopted rules related to initial public offerings by special purpose acquisition companies (“SPACs”) and subsequent business combination transactions between SPACs and private operating companies (“de-SPAC transactions”). 3 Under the rules, the private operating company in a de-SPAC transaction would be, in some instances, a co-registrant for purposes of the registration statement filed in connection with the de-SPAC transaction. EDGAR will be updated to permit co-registrants in a draft registration submission.

EDGAR will be updated to allow registered security-based swap execution facilities (“SBSEFs”) to file chief compliance officer reports and financial resource reports using Inline XBRL. Chief compliance officer reports and amendments will be filed as SBSEF-CCO-RPT and SBSEF-CCO-RPT/A submissions, respectively. Quarterly financial resource reports and amendments, and financial resource reports pursuant to Commission requests and amendments will be filed as SBSEF-FIN-QTR, SBSEF-FIN-QTR/A, SBSEF-FIN-REQ, and SBSEF-FIN-REQ/A submissions, respectively. 4

EDGAR will be updated to allow filers to use the appropriate XBRL Taxonomy for cybersecurity disclosures required to be included in Forms 6-K, 8-K, 10-K, and 20-F (and the variants 10-KT, 10-K/A, 10-KT/A, 20-F/A, 8-K/A, and 6-K/A). 5

Volume II of the Filer Manual will be updated to remove the Index. Filers may continue to use the Table of Contents which links directly to chapters and topics, and the document search function of this online manual.

Along with the adoption of the updated Filer Manual, we are amending Rule 301 of Regulation S-T to provide for the incorporation by reference into the Code of Federal Regulations of the current revisions. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.

The updated EDGAR Filer Manual is available at https://www.sec.gov/edgar/filerinformation/current-edgar-filer-manual.

Because the Filer Manual and rule amendments relate solely to agency procedures or practice and do not substantially alter the rights and obligations of non-agency parties, publication for notice and comment is not required under the Administrative Procedure Act (“APA”). 6 It follows that the amendments do not require analysis under requirements of the Regulatory Flexibility Act  7 or a report to Congress under the Small Business Regulatory Enforcement Fairness Act of 1996. 8

The effective date for the updated Filer Manual and related rule amendments is October 22, 2024. In accordance with the APA, 9 we find that there is good cause to establish an effective date less than 30 days after publication of these rules. The Commission believes that establishing an effective date less than 30 days after publication of these rules is necessary to coordinate the effectiveness of the updated Filer Manual with the related system upgrades.

We are adopting the amendments to Regulation S-T under the authority in sections 6, 7, 8, 10, and 19(a) of the Securities Act of 1933, 10 sections 3, 12, 13, 14, 15, 15B, 23, and 35A of the Securities Exchange Act of 1934, 11 section 319 of the Trust Indenture Act of 1939, 12 and sections 8, 30, 31, and 38 of the Investment Company Act of 1940. 13

In accordance with the foregoing, title 17, chapter II of the Code of Federal Regulations is amended as follows:

The United States is a party to the 1971 United Nations Convention on Psychotropic Substances (1971 Convention), Feb. 21, 1971, 32 U.S.T. 543, 1019 U.N.T.S. 175, as amended. Procedures respecting changes in drug schedules under the 1971 Convention are governed domestically by 21 U.S.C. 811(d)(2)-(4). When the United States receives notification of a scheduling decision pursuant to Article 2 of the 1971 Convention indicating that a drug or other substance has been added to a schedule specified in the notification, the Secretary of Health and Human Services (Secretary), 1 after consultation with the Attorney General, shall first determine whether existing legal controls under subchapter I of the Controlled Substances Act (CSA) and the Federal Food, Drug, and Cosmetic Act meet the requirements of the schedule specified in the notification with respect to the specific drug or substance. 2 In the event that the Secretary did not so consult with the Attorney General, and the Attorney General did not issue a temporary order, as provided under 21 U.S.C. 811(d)(4), the procedures for permanent scheduling set forth in 21 U.S.C. 811(a) and (b) control.

Pursuant to 21 U.S.C. 811(a)(1) and (2), the Attorney General (as delegated to the Administrator of the Drug Enforcement Administration (DEA) pursuant to 28 CFR 0.100) may, by rule, and upon the recommendation of the Secretary, add to such a schedule or transfer between such schedules any drug or other substance, if he finds that such drug or other substance has a potential for abuse, and makes with respect to such drug or other substance the findings prescribed by 21 U.S.C. 812(b) for the schedule in which such drug or other substance is to be placed.

Ethylphenidate is a central nervous system stimulant and shares structural and pharmacological similarities with other schedule II stimulants, such as methylphenidate. On April 21, 2017, the Secretary-General of the United Nations advised the Secretary of State of the United States that, during its 60th session on March 16, 2017, the Commission on Narcotic Drugs (CND) voted to place ethyl 2-phenyl-2-(piperidin-2-yl)acetate (ethylphenidate) in Schedule II of the 1971 Convention (CND Dec/60/7). Because the procedures in 21 U.S.C. 811(d)(3) and (4) for consultation and issuance of a temporary order for ethylphenidate were not followed, as discussed above in the legal authority section, DEA is utilizing the procedures for permanent scheduling set forth in 21 U.S.C. 811(a) and (b) to control ethylphenidate. Permanently scheduling ethylphenidate satisfies the United States' international obligations.

In a letter dated October 26, 2020, in accordance with 21 U.S.C. 811(b), and in response to DEA's April 3, 2019 request, HHS provided to DEA a scientific and medical evaluation and scheduling recommendation for ethylphenidate. DEA reviewed the scientific and medical evaluation and scheduling recommendation for schedule I placement provided by HHS, and all other relevant data, pursuant to 21 U.S.C. 811(b) and (c), and conducted its own analysis under the eight factors stipulated in 21 U.S.C. 811(c). DEA found, under 21 U.S.C. 811(b)(1), that this substance warrants control in schedule I. Both DEA and HHS Eight-Factor analyses are available in their entirety under the tab Supporting Documents of the public docket for this action at https://www.regulations.gov under docket number DEA-1142.

On September 22, 2023, DEA published a notice of proposed rulemaking (NPRM) to permanently control ethylphenidate in schedule I. 3 Specifically, DEA proposed to add ethylphenidate to the list of stimulant substances under 21 CFR 1308.11(f). The NPRM provided an opportunity for interested persons to file a request for hearing in accordance with DEA regulations on or before October 23, 2023. DEA did not receive any requests for such a hearing. The NPRM also provided an opportunity for interested persons to submit comments on or before November 21, 2023.

DEA received ten comments in response to the notice of proposed rulemaking for the placement of ethylphenidate into schedule I of the CSA. The submissions were from individuals or anonymous commenters. Five commenters provided support for the notice of proposed rulemaking, four commenters were against the placement of ethylphenidate in schedule I of the CSA, and one commenter expressed statements that were neither for nor against the proposed rule.

DEA received five comments in support of the placement of ethylphenidate in schedule I.

DEA Response: DEA appreciates these comments in support of this rulemaking.

DEA received four comments against the placement of ethylphenidate in schedule I of the CSA. The following are DEA's responses to the individual comments against the proposed rulemaking.

DEA received a comment asserting that methylphenidate is already controlled under schedule II of the CSA, thus, ethylphenidate is considered controlled under the Controlled Substances Analogue Act due to their similarities. This commenter concluded that the government should not dictate what researchers may study for legitimate scientific use.

DEA Response: DEA appreciates this comment and would like to provide further clarification regarding the control of ethylphenidate. Ethylphenidate has been placed under international control. In order to comply with treaty obligations, DEA must place ethylphenidate under the most appropriate schedule, taking into consideration all appropriate scientific data. This is true even if this substance could be treated under the Controlled Substances Analogue provision. Additionally, as set forth in the NPRM, ethylphenidate has no currently accepted medical use in treatment in the United States. Therefore, ethylphenidate must be placed in schedule I of the CSA along with other substances which have no currently accepted medical use, lack accepted safety for use under medical supervision, and possess a high potential for abuse. With respect to scientific research, the placement of substances in schedule I of the CSA does not preclude academic research on these substances. DEA registrants wishing to conduct research on schedule I substances may apply for permission to do so through the schedule I researcher registration program. 4

DEA received a comment comparing ethylphenidate to methylphenidate. The commenter questioned the reasonable nature of placing ethylphenidate in schedule I of the CSA considering it is a weaker substance when compared to methylphenidate, a schedule II substance.

DEA Response: DEA appreciates this comment and asserts the following: Ethylphenidate belongs to the stimulant class of drugs and possesses abuse liability similar to that of methylphenidate; however, unlike methylphenidate, ethylphenidate has no currently accepted medical use in treatment in the United States. A qualification for placing substances in schedules II thorough IV of the CSA is that they must have a currently accepted medical use in treatment in the United States. Thus, DEA asserts that the placement of ethylphenidate in schedule I of the CSA is warranted.

DEA received a comment with statements against the NPRM placing ethylphenidate in schedule I of the CSA. The commenter stated that, in the NPRM, DEA failed to provide a reason for the placement of ethylphenidate in a more restrictive schedule (here, schedule I) than methylphenidate, considering the two drugs share significant pharmacological similarities and are considered analogues of one another. The commenter further stated that because ethylphenidate is an analog of methylphenidate, it may be possible in the future for ethylphenidate to be marketed as an alternative to methylphenidate. In particular, the commenter stated the placement of ethylphenidate in schedule I of the CSA would completely hamper future legitimate research regarding its medical efficacy. Thus, the commenter states, by imposing criminal sanctions on those who engage in research or chemical analysis of the drug, DEA would prevent the future discovery of its possible medical use.

DEA Response: DEA appreciates this comment and asserts the following: As stated above, ethylphenidate has been placed under international control. In order to comply with treaty obligations, DEA must place ethylphenidate under the most appropriate schedule, taking into consideration all appropriate scientific data. Additionally, a qualification for placing substances in schedules II thorough IV of the CSA is that they must have a currently accepted medical use in treatment in the United States. Ethylphenidate has no currently accepted medical use in treatment in the United States, lacks accepted safety for use under medical supervision, and possesses a high potential for abuse. Thus, DEA asserts that the placement of ethylphenidate in schedule I of the CSA is warranted. With respect to research, the placement of substances in schedule I of the CSA does not preclude research into this substance. DEA registrants wishing to conduct research on schedule I substances, including ethylphenidate, may apply for permission to do so through the schedule I researcher registration program.

DEA received a comment expressing that ethylphenidate should be categorized as a schedule II drug “until further research has been conducted to prove its viability.”

DEA Response: DEA appreciates this comment and asserts the following: According to the CSA, schedule I substances are defined as drugs that have no known medical use in treatment in the United States, and have a high potential for abuse. Additionally, according to the CSA, schedule II substances also have a high potential for abuse but have a currently accepted medical use in treatment. Accordingly, DEA proposed to place ethylphenidate in schedule I of the CSA, due to its lack of a currently accepted medical use in treatment in the United States, its lack of accepted safety for use under medical supervision, and its high potential for abuse.

DEA received one comment that provided statements that were neither explicitly for nor against the proposed rule.

In this comment, the commenter suggested that instead of creating a new rule for the control of ethylphenidate, DEA should simply clarify the existing rule which controlled methylphenidate. According to this commenter, this suggested amendment would extend control to all derivatives of methylphenidate. The commenter also expressed an understanding of DEA's intent to schedule ethylphenidate but questioned whether a standard notice-and-comment procedure was needed for an action that could be addressed by clarifying existing rulemaking.

DEA Response: DEA appreciates this suggestion and asserts the following: Ethylphenidate was placed under international control on March 16, 2017, during the CND's 60th session. As a signatory to the 1971 Convention on Psychotropic Substances, it is incumbent upon DEA to place ethylphenidate in its most appropriate schedule under the CSA. Therefore, DEA proposed to place ethylphenidate in schedule I of the CSA because it has no currently accepted medical use in treatment in the United States, lacks accepted safety for use under medical supervision, and has an abuse potential similar to that of methylphenidate. As explained in the NPRM, because the procedures in 21 U.S.C. 811(d)(3) and (4) for consultation and issuance of a temporary order for ethylphenidate were not followed, DEA utilized the procedures for permanent scheduling set forth in 21 U.S.C. 811(a) and (b) to control ethylphenidate, which required notice and an opportunity for hearing.

After consideration of the public comments, scientific and medical evaluation and accompanying scheduling recommendation from HHS, and after its own eight-factor evaluation, DEA finds that these facts and all relevant data constitute substantial evidence of potential for abuse of ethylphenidate. As such, DEA is permanently scheduling ethylphenidate as a controlled substance under schedule I of the CSA. The permanent scheduling of ethylphenidate will fulfill the United States' obligations as a party to the 1971 Convention.

The CSA establishes five schedules of controlled substances known as schedules I, II, II, IV, and V. The CSA also specifies the findings requires to place a drug or other substance in any particular schedule, 21 U.S.C. 812(b). After consideration of the analysis and recommendation of the Acting Assistant Secretary for Health of HHS and review of all other available data, the Administrator of DEA, pursuant to 21 U.S.C. 812(b)(1), finds that:

Based on these findings, the Administrator of DEA concludes that ethylphenidate, as well as its salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible, warrants control in schedule I of the CSA.

Ethylphenidate is subject to the CSA's schedule I regulatory controls and administrative, civil, and criminal sanctions applicable to the manufacture, distribution, reverse distribution, import, export, engagement in research, conduct instructional activities or chemical analysis with, and possession of schedule I controlled substances, including the following:

1. Registration. Any person who handles (manufactures, distributes, reverse distributes, imports, exports, engages in research, or conducts instructional activities or chemical analysis with, or possesses), or who desires to handle, ethylphenidate must register with DEA to conduct such activities pursuant to 21 U.S.C. 822, 823, 957, and 958, and in accordance with 21 CFR parts 1301 and 1312. Any person who currently handles ethylphenidate and is not registered with DEA must submit an application for registration and may not continue to handle ethylphenidate, unless DEA has approved that application for registration pursuant to 21 U.S.C. 822, 823, 957, 958, and in accordance with 21 CFR parts 1301 and 1312. Retail sales of schedule I controlled substances to the general public are not allowed under the CSA. Possession of any quantity in a manner not authorized by the CSA is unlawful and those in possession of any quantity may be subject to prosecution pursuant to the CSA.

2. Disposal of stocks. Any person unwilling or unable to obtain a schedule I registration must surrender or transfer all quantities of currently held ethylphenidate to a person registered with DEA before the effective date of a final scheduling action in accordance with all applicable Federal, State, local, and tribal laws. Ethylphenidate must be disposed of in accordance with 21 CFR part 1317, in addition to all other applicable Federal, State, local, and tribal laws.

3. Security. Ethylphenidate is subject to schedule I security requirements and must be handled and stored pursuant to 21 U.S.C. 823, and in accordance with 21 CFR 1301.71-1301.76, as of the effective date of this final scheduling action. Non-practitioners handling ethylphenidate must comply with the employee screening requirements of 21 CFR 1301.90-1301.93.

4. Labeling and Packaging. All labels, labeling, and packaging for commercial containers of ethylphenidate must comply with 21 U.S.C. 825, and be in accordance with 21 CFR part 1302.

5. Quota. Only registered manufacturers are permitted to manufacture ethylphenidate in accordance with a quota assigned pursuant to 21 U.S.C. 826, and in accordance with 21 CFR part 1303.

6. Inventory. Every DEA registrant who possesses any quantity of ethylphenidate must take an inventory of ethylphenidate on hand, pursuant to 21 U.S.C. 827 and in accordance with 21 CFR 1304.03, 1304.04, and 1304.11(a) and (d).

Any person who registers with DEA must take an initial inventory of all stocks of controlled substances (including ethylphenidate) on hand on the date the registrant first engages in the handling of controlled substances, pursuant to 21 U.S.C. 827 and in accordance with 21 CFR 1304.03, 1304.04, and 1304.11(a) and (b).

After the initial inventory, every DEA registrant must take an inventory of all controlled substances (including ethylphenidate) on hand every two years, pursuant to 21 U.S.C. 827 and in accordance with 21 CFR 1304.03, 1304.04, and 1304.11.

7. Records and Reports. Every DEA registrant must maintain records and submit reports for ethylphenidate, or products containing ethylphenidate, pursuant to 21 U.S.C. 827 and in accordance with 21 CFR 1301.74(b) and (c), 1301.76(b), and parts 1304, 1312 and 1317. Manufacturers and distributors must submit reports regarding ethylphenidate to the Automation of Reports and Consolidated Order System pursuant to 21 U.S.C. 827 and in accordance with 21 CFR parts 1304 and 1312.

8. Order Forms. Every DEA registrant who distributes ethylphenidate must comply with the order form requirements, pursuant to 21 U.S.C. 828 and 21 CFR part 1305.

9. Importation and Exportation. All importation and exportation of ethylphenidate must comply with 21 U.S.C. 952, 953, 957, and 958, and in accordance with 21 CFR parts 1304 and 1312.

10. Liability. Any activity involving ethylphenidate not authorized by, or in violation of, the CSA or its implementing regulations, is unlawful, and may subject the person to administrative, civil, and/or criminal sanctions.

In accordance with 21 U.S.C. 811(a), this final scheduling action is subject to formal rulemaking procedures performed “on the record after opportunity for a hearing,” which are conducted pursuant to the provisions of 5 U.S.C. 556 and 557. The CSA sets forth the procedures and criteria for scheduling a drug or other substance. Such actions are exempt from review by the Office of Management and Budget pursuant to section 3(d)(1) of Executive Order (E.O.) 12866 and the principles reaffirmed in E.O. 13563. E.O. 14094 modernizes the regulatory review process to advance policies that promote the public interest and address national priorities.

This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of E.O. 12988 to eliminate drafting errors and ambiguity, minimize litigation, provide a clear legal standard for affected conduct, and promote simplification and burden reduction.

This rulemaking does not have federalism implications warranting the application of E.O. 13132. The proposed rule does 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.

This rule does not have tribal implications warranting the application of E.O. 13175. It does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.

This action does not impose a new collection of information requirement under the Paperwork Reduction Act of 1995. 6 Also, this proposed rule would not impose new or modify existing recordkeeping or reporting requirements on state or local governments, individuals, businesses, or organizations. However, this proposed rule would require compliance with the following existing OMB collections: 1117-0003, 1117-0004, 1117-0006, 1117-0008, 1117-0009, 1117-0010, 1117-0012, 1117-0014, 1117-0021, 1117-0023, 1117-0029, and 1117-0056. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

The Administrator of DEA, in accordance with the Regulatory Flexibility Act, 5 U.S.C. 601-612, has reviewed this final rule, and by approving it, certifies that it will not have a significant economic impact on a substantial number of small entities.

DEA is placing the substance ethylphenidate (chemical name: ethyl 2-phenyl-2-(piperidin-2-yl)acetate), including its salts, isomers, and salts of isomers, in schedule I of the CSA to enable the United States to meet its obligations under the 1971 Convention. This action imposes the regulatory controls and administrative, civil, and criminal sanctions applicable to schedule I controlled substances on persons who handle (manufacture, distribute, reverse distribute, import, export, engage in research, conduct instructional activities or chemical analysis with, or possess) or propose to handle ethylphenidate.

Based on the review of HHS's scientific and medical evaluation and all other relevant data, DEA determined that ethylphenidate has high potential for abuse, has no currently accepted medical use in treatment in the United States, and lacks accepted safety for use under medical supervision. DEA's research confirms that there is no legitimate commercial market for ethylphenidate in the United States. Therefore, this final rule will not have a significant economic impact on a substantial number of small entities.

On the basis of information contained in the “Regulatory Flexibility Act” section above, DEA has determined pursuant to the Unfunded Mandates Reform Act (UMRA) of 1995 (2 U.S.C. 1501 et seq.) that this final rule would not result in any Federal mandate that may result “in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any 1 year . . . .” Therefore, neither a Small Government Agency Plan nor any other action is required under UMRA of 1995.

This rule is not a major rule as defined by the Congressional Review Act (CRA), 5 U.S.C. 804. However, pursuant to the CRA, DEA is submitting a copy of the final rule to both Houses of Congress and to the Comptroller General.

For the reasons set out above, 21 CFR part 1308 is amended as follows:

This document of the Drug Enforcement Administration was signed on October 10, 2024, by Administrator Anne Milgram. That document with the original signature and date is maintained by DEA. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DEA Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of DEA. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

The Coast Guard will enforce the safety zone regulation for a fireworks display at The Wharf DC from 8 p.m. to 9:30 p.m. on December 7, 2024, or, if necessary due to inclement weather, from 8 p.m. until 9:30 p.m. on December 8, 2024. This action is being taken to provide for the safety of life on navigable waterways during this event. Our regulation, “Safety Zones; Fireworks Displays within the Fifth Coast Guard District,” § 165.506, specifies the location of the safety zone for the fireworks show, which encompasses portions of the Washington Channel in the Upper Potomac River. As reflected in 33 CFR 165.23, vessels in the vicinity of the safety zone may not enter, remain in, or transit through the safety zone during the enforcement period unless authorized to do so by the COTP or his representative, and they must comply with directions from the Patrol Commander or any Official Patrol displaying a Coast Guard ensign.

In addition to this notification of enforcement in the Federal Register , the Coast Guard plans to provide notification of this enforcement period via the Local Notice to Mariners and marine information broadcasts.

The information presented in this preamble is organized as follows:

No entities will be affected by this final action. The EPA is amending its PSD regulations to correct the fourth-level paragraph designations from the Code of Federal Regulations (CFR) to conform with the OFR requirements. The EPA is responsible for making the required paragraph codification corrections in the EPA PSD regulations and communicating those corrections to stakeholders, including state, local, and Tribal (SLT) permitting authorities and regulated entities. SLT permitting authorities are not required to make corresponding corrections to any of their regulations implementing the PSD program including those approved by the EPA into a State Implementation Plan (SIP).

Part C of title I of the Clean Air Act (CAA), 42 U.S.C. 7470 et seq., contains the requirements for a component of the major New Source Review (NSR) program known as the PSD program. This program sets forth procedures for the preconstruction review and permitting of new and modified stationary sources of air pollution located in areas meeting the National Ambient Air Quality Standards (NAAQS) (“attainment” areas) and areas for which there is insufficient information to classify an area as either attainment or nonattainment (“unclassifiable” areas). The EPA's PSD regulations are contained in 40 CFR 51.166 (applicable to air agencies that issue permits under EPA-approved SIPs) and 40 CFR 52.21 (applicable to permits issued by the EPA or air agencies that have received delegation to implement the federal PSD program).

In 2019, the OFR identified that the paragraph codification scheme of these PSD regulations was inconsistent with OFR requirements, and the EPA committed to correcting this inconsistency. However, recently as part of OFR's review of the proposed rule: “Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR): Regulations Related to Project Emissions Accounting” (RIN 2060-AV62), the OFR determined that the EPA had not yet made the corrections. To resolve the OFR's concerns, the EPA is revising the PSD regulations to conform with the OFR requirements  1 through this ministerial final rule action to correct the fourth-level paragraph designations. Specifically, this rule will correct the fourth-level paragraph codification in 40 CFR 51.166 and 40 CFR 52.21 from ( a ), et seq., to (A), et seq. In other words, the fourth-level paragraph designations will be changed from lowercase italicized letters to uppercase non-italicized letters.

The error in the fourth-level paragraph codification in the EPA's PSD regulations can be traced back to their inception in the 1970s. On December 5, 1974, the EPA published the first set of PSD regulations under the CAA Amendments of 1970. 2 These regulations were codified at 40 CFR 52.21 and established a program for protecting areas with air quality either in attainment with the NAAQS or unclassifiable. A comprehensive set of new PSD requirements were later adopted by Congress as part of the CAA Amendments of 1977. 3 The EPA amended the PSD regulations to incorporate those new statutory requirements on June 19, 1978 (43 FR 26380 and 43 FR 26388). These regulations were codified at 40 CFR 51.24 (minimum requirements for state plans, later codified at 40 CFR 51.166  4 ) and 40 CFR 52.21 (federal PSD regulations). The PSD regulations were subsequently revised numerous times, but the fourth-level paragraph designations have remained inconsistent with the OFR requirements. 5 This ministerial final rule will correct the paragraph designation inconsistencies that were established decades ago in the EPA's PSD regulations to conform with the OFR requirements.

The EPA is promulgating this rule as a final rule without prior notice or opportunity for public comment pursuant to the good cause exemption under the Administrative Procedure Act (APA) section 553(b)(B). 5 U.S.C. 553(b)(B). Generally, the APA requires that general notice of proposed rulemaking be published in the Federal Register and such notice must provide an opportunity for public participation in the rulemaking process. However, the APA also allows an agency to directly promulgate a final rulemaking when an agency for good cause finds (and incorporates the finding and a brief statement of reasons in the rule issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. 5 U.S.C. 553(b)(3)(B).

The EPA has determined that this final action meets the “unnecessary” basis for using the good cause exemption since amendments promulgated in this action are very minor and do not substantively alter the regulation in any way that would be of interest to the regulated community or the public. This final action involves purely ministerial revisions to the PSD regulations in 40 CFR 51.166 and 40 CFR 52.21 involving minor structural corrections to conform with the OFR paragraph designation requirements. Specifically, the fourth-level paragraph designations will be corrected from lowercase italicized letters to uppercase non-italicized letters. The OFR paragraph designation requirements are established by the OFR; therefore, EPA has no discretion but to correct the affected paragraph designations in the EPA PSD regulations. Notice and comment requirements are unnecessary because seeking public comment on this issue would neither inform the public of agency action that may be of interest nor provide the agency with information that would be helpful in developing a final rule.

Additional information about these statutes and Executive Orders can be found at https://www2.epa.gov/laws-regulations/laws-and-executive-orders.

This action is not a significant regulatory action as defined in Executive Order 12866, as amended by Executive Order 14094, and was, therefore, not subject to Executive Order 12866 review.

This action involves very minor technical corrections and does not impose any new information collection burden under the PRA. The Office of Management and Budget (OMB) has previously approved the information collection activities contained in the existing regulations and has assigned OMB control number 2060-0003.

This action is not subject to the RFA. The RFA applies only to rules subject to notice and comment rulemaking requirements under the APA, 5 U.S.C. 553, or any other statute. This rule is not subject to notice and comment requirements because the Agency has invoked the APA “good cause” exemption under 5 U.S.C. 553(b).

This action does not contain an unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action implements mandate(s) specifically and explicitly set forth in 44 U.S.C. 15 and 1 CFR chapter I without the exercise of any policy discretion by the EPA.

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

This action does not have tribal implications, as specified in Executive Order 13175. This action only makes very minor technical amendments to correct non-substantive errors in existing regulations. None of these very minor technical amendments has a substantial direct effect on any tribal land. Thus, Executive Order 13175 does not apply to this action.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. Therefore, this action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk. Since this action does not concern human health, EPA's Policy on Children's Health also does not apply.

This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

This rulemaking does not involve technical standards.

The EPA finds that this action does not concern human health or environmental conditions and therefore cannot be evaluated with respect to potentially disproportionate and adverse effects on communities with environmental justice concerns. This action changes the fourth-level paragraph designation of the EPA's PSD regulations contained in 40 CFR 51.166 and 40 CFR 52.21 to conform with OFR requirements. This action makes very minor technical amendments to correct non-substantive errors in existing rules.

This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. The CRA allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and comment rulemaking procedures are impracticable, unnecessary or contrary to the public interest. 5 U.S.C. 808(2). The EPA has made a good cause finding for this rule as discussed in the Final Action section of this rulemaking, including the basis for that finding.

Statutory authority to issue the amendments finalized in this action is provided by the same CAA provisions that provided authority to issue the regulations being amended: 42 U.S.C. 7401 et seq. Statutory authority for the rulemaking procedures followed in this action is provided by APA section 553, 5 U.S.C. 553.

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the D.C. Circuit within 60 days from October 22, 2024. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review, nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (section 307(b)(2) of the CAA).

For the reasons stated in the preamble, title 40, Chapter I of the Code of Federal Regulations is amended as follows:

On August 8, 2022, the Delaware Department of Natural Resources and Environmental Control (DNREC) submitted a revision to its SIP to address regional haze for the second implementation period; with a supplement submitted on March 7, 2024 which included title V permit provisions for three facilities owned by Calpine Mid-Atlantic Generation, LLC to be incorporated into the Delaware SIP. EPA reviewed and evaluated the State's selection and modification of the applicable title V permits to incorporate the regional haze requirements of the second implementation period. DNREC updated Title V permits for Calpine Christiana Energy Center, Calpine Delaware City Energy Center, and Calpine West Energy Center after conducting four-factor analyses and added the 88 ppm NO X emission limit during April and October. Delaware issued the new permits on May 19, 2021 and included them in appendix 10-2 of its SIP submittal; redacted copies of these permits were subsequently resubmitted to EPA with an effective date of December 19, 2023 so that the portions relevant to compliance with the regional haze requirements of the second planning period could be incorporated into the Delaware SIP. 1 DNREC made this SIP submission to satisfy the requirements of the CAA's regional haze program pursuant to CAA sections 169A and 169B and 40 Code of Federal Regulations (CFR) 51.308. The full substance of the Delaware's regional haze SIP submission for the second planning period is discussed at length in the notice of proposed rulemaking (NPRM).

On August 19, 2024 (89 FR 67018), EPA published an NPRM proposing approval of Delaware's August 8, 2022 SIP submission and its March 7, 2024 supplement as satisfying the regional haze requirements for the second implementation period contained in the CAA and 40 CFR 51.308. EPA is now determining that the Delaware regional haze SIP submission for the second implementation period meets the applicable statutory and regulatory requirements and is thus approving Delaware's submission into its SIP.

EPA received three comments in response to the NPRM, two of which were unique. One comment originated from the Mid-Atlantic/Northeast Visibility Union (MANE-VU) in support of the EPA's proposed action, and the other comment originated from an individual and was not relevant. These comments are available in the docket for this action via Docket ID Number EPA-R03-OAR-2023-0301 on the www.regulations.gov website. EPA's summary of and response to the relevant comment is provided below.

Comment: MANE-VU submitted comments in support of the EPA's proposed action, stating:

Response: EPA appreciates and agrees with this comment. 2

For the reasons set forth at length in the NPRM, EPA is approving, as a SIP revision, Delaware's August 8, 2022 SIP submission and its March 7, 2024 supplement as satisfying the regional haze requirements for the second implementation period contained in 40 CFR 51.308(f).

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of specific provisions of the revised title V permits for Calpine Christiana Energy Center, Calpine Delaware City Energy Center, and Calpine West Energy Center, dated and effective December 19, 2023, between DNREC and Calpine Mid-Atlantic Generation, LLC, which includes emission limits and associated permit conditions for these facilities to comply with Regional Haze requirements for the 2nd Planning Period, as discussed in section I of this document and included in the amendments to 40 CFR part 52 set forth below. These permit revisions are contained in DNREC's supplemental SIP submittal dated March 7, 2024, submitted on behalf of the State of Delaware; the portions of these permit revisions that will be incorporated by reference into the SIP are clarified by the DNREC Air Quality Division Director via a letter dated May 28, 2024. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 3 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rule of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 3

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

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

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

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

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

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

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

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

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

In addition, this rule does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on Tribal governments or preempt Tribal law.

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

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

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

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

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

Organization of this document. The information in this preamble is organized as follows:

Categories and entities potentially regulated by this action are shown in table 1 of this preamble.

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. To determine whether your facility would be regulated by this action, you should examine the applicability criteria in the regulations. If you have any questions regarding the applicability of this action to a particular entity, contact the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

In addition to being available in the docket, at Docket ID No. EPA-HQ-OAR-2023-0406 located at https://www.regulations.gov/, an electronic copy of this final rulemaking is available on the internet at https://www.epa.gov/controlling-air-pollution-oil-and-natural-gas-operations. Following signature by the EPA Administrator, the EPA will post a copy of this final rulemaking at this same website. Following publication in the Federal Register , the EPA will post the Federal Register version of the final rulemaking.

Under Clean Air Act (CAA) section 307(b)(1), judicial review of this final rulemaking is available only by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit by December 23, 2024. Under CAA section 307(b)(2), the requirements established by this final rulemaking may not be challenged separately in any civil or criminal proceedings brought by the EPA to enforce the requirements. Section 307(d)(7)(B) of the CAA further provides that “[o]nly an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review.” This section also provides a mechanism for the EPA to convene a proceeding for reconsideration, “[i]f the person raising an objection can demonstrate to the EPA that it was impracticable to raise such objection within [the period for public comment] or if the grounds for such objection arose after the period for public comment, (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule.”Any person seeking to make such a demonstration to us should submit a Petition for Reconsideration to the Office of the Administrator, U.S. Environmental Protection Agency, Room 3000, WJC West Building, 1200 Pennsylvania Ave. NW, Washington, DC 20460, with a copy to both the person(s) listed in the preceding FOR FURTHER INFORMATION CONTACT section, and the Associate General Counsel for the Air and Radiation Law Office, Office of General Counsel (Mail Code 2344A), U.S. Environmental Protection Agency, 1200 Pennsylvania.

In a proposal published December 1, 2023 (88 FR 83889), the EPA proposed to remove the provisions of an affirmative defense to civil penalties in the National Emission Standards for Hazardous Air Pollutants for the Oil and Natural Gas Production source category and the Natural Gas Transmission and Storage source category, 40 CFR 63.762(d) and 63.1272(d) in 40 CFR part 63, subparts HH and HHH, respectively. The EPA is finalizing removal of these affirmative defense provisions as proposed.

In 1998, the EPA promulgated National Emission Standards for Hazardous Air Pollutants for the Oil and Natural Gas Production Facility and Natural Gas Transmission and Storage Facility Source Categories, 40 CFR part 63, subparts HH and HHH (64 FR 32610; June 17, 1999) (“Oil and Gas NESHAP”). In 2012, the EPA amended the Oil and Gas NESHAP (77 FR 49490; August 16, 2012). The 2012 amendments included provisions allowing owners and operators to assert an affirmative defense to civil penalties for violations caused by malfunctions. See 40 CFR 63.762 and 63.1672, Id. at 49569 and 49585. A malfunction is a sudden, infrequent, and not reasonably preventable failure of air pollution control and monitoring equipment, process equipment, or a process to operate in a normal or usual manner. See 40 CFR 63.2. As defined in 40 CFR part 63, subparts HH and HHH, “affirmative defense” means, “in the context of an enforcement proceeding, a response or defense put forward by a defendant, regarding which the defendant has the burden of proof, and the merits of which are independently and objectively evaluated in a judicial or administrative proceeding.” See 40 CFR 63.761 and 63.1271. The EPA established an affirmative defense to civil penalties in 40 CFR part 63, subparts HH and HHH in an effort to create a system that incorporates some flexibility, recognizing that there is a tension, inherent in many types of air regulation, to ensure adequate compliance while simultaneously recognizing that despite the most diligent of efforts, emission standards may be violated under circumstances entirely beyond the control of the source (77 FR 49508). Under these affirmative defense provisions, if a source could demonstrate in a judicial or administrative proceeding that it had met the requirements of the affirmative defense in the regulation, civil penalties would not be assessed.

In 2014, the United States Court of Appeals for the District of Columbia Circuit (the D.C. Circuit Court) vacated the affirmative defense in one of the EPA's CAA section 112 regulations. NRDC v. EPA, 749 F.3d 1055 (D.C. Cir., 2014) (vacating affirmative defense provisions in the CAA section 112 rule establishing emission standards for portland cement kilns) ( NRDC ). Like the affirmative defense provisions in the Oil and Gas NESHAP, the affirmative defense at issue in NRDC similarly provided that civil penalties may be assessed only if violators “fail to meet [their] burden of proving all of the requirements in the affirmative defense.” 749 F.3d at 1062; see also 78 FR 10039, § 63.1344. The D.C. Circuit Court found that the EPA lacked authority to establish an affirmative defense for penalties in private civil suits brought under CAA section 304(a) and held that the authority to determine civil penalty amounts in such cases lies exclusively with the courts, not the EPA. 749 F.3d at 1063. Specifically, the D.C. Circuit Court found: “As the language of the statute makes clear, the courts determine, on a case-by-case basis, whether civil penalties are `appropriate.' ” Id. (“[U]nder this statute, deciding whether penalties are `appropriate' in a given private civil suit is a job for the courts, not EPA.”). 1

In light of the NRDC decision, the EPA proposed and is now finalizing removal of the affirmative defense provisions from the Oil and Gas NESHAP which, like the rule at issue in the NRDC decision, is also a CAA section 112 rule. These provisions imply legal authority that the D.C. Circuit Court has stated that the EPA does not have. 2 As the EPA explained in the proposed rule, if a source is unable to comply with emissions standards as a result of a malfunction, the EPA may use its case-by-case enforcement discretion to provide flexibility, as appropriate (88 FR 83889, 83891). Further, as the D.C. Circuit Court recognized, in a citizen enforcement action brought under CAA section 304(a), the courts have the discretion to consider any defense raised and determine whether penalties are appropriate. NRDC, 749 F.3d at 1064 (arguments that a violation was caused by unavoidable technology failure can be made to the courts in future civil cases when the issue arises). The same is true for the presiding officer in EPA administrative enforcement actions. 3

EPA received one comment on the proposal. Below is a summary of the comment and the EPA response thereto.

Comment: The commenter requests that the EPA retain the affirmative defense provisions in the Oil and Gas NESHAP. The commenter first argues that the decision in NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 2014), which the EPA has identified as the basis of its proposed rule, does not compel the EPA to remove the affirmative defense at issue because the affirmative defense provision at issue in NRDC provided defense against civil penalties after liability has been established; the commenter claims that, in contrast, the affirmative defense in subparts HH and HHH provides for defense against liability, not civil penalties, and is therefore unaffected by the NRDC decision. The commenter argues that, to the extent the EPA is asserting that there is no distinction between an affirmative defense to liability and an affirmative defense to penalties at issue in NRDC, such a position is “ill-considered” and “wholly unsupported.”

The commenter next argues that, even if the EPA were to remove the affirmative defense in these two NESHAP from judicial proceedings, the EPA should retain it in administrative enforcement matters. In support, the commenter first notes that the NRDC decision addressed only judicial proceedings and therefore does not compel the EPA to remove affirmative defense from administrative enforcement matters. Next, the commenter disputes the EPA's assertion that “such an affirmative defense is not necessary,” claiming that the defense “provides an essential measure of flexibility to sources facing real challenges with malfunctions in their operations that are beyond their control.” The commenter expresses concern that “without the specificity provided by the regulation, the ability to raise these real-world practical challenges is left to the unspecified `discretion' of EPA enforcement officials or the presiding officer (an EPA employee) in an administrative proceeding.” The commenter claims the EPA recognized such an approach as lacking a formalized approach and regulatory clarity, citing the proposal preamble describing the EPA's position at the time it established the affirmative defense at issue (88 FR 83891). The commenter further claims that both the EPA and the courts have “long understood that it is fundamentally unfair to penalize a source for unavoidable emissions,” citing Essex Chem. Corp. v. Ruckelshaus, 486 F.2d 427, 433 (D.C. Cir. 1973). 4 The commenter argues that “it would be unjust to penalize a source for emissions that were beyond its control as this neither serves the purposes of punishment nor deterrence.” The commenter claims that the proposed rule “provides no explanation as to why, after decades of finding an affirmative defense for emergency-related emissions to be necessary, justice no longer requires it.”

The commenter then notes the EPA's explanation in the proposed rule that the “assessment of penalties for violations caused by malfunctions in administrative proceedings and judicial proceedings should be consistent” but asks that the EPA reconsider. The commenter claims that the EPA's reasoning, which refers to CAA section 113(e) specifying “penalty assessment criteria” for both the EPA and the courts to consider, as appropriate (88 FR 83891, footnote 3), is “wrong and not sound policy.” In support, the commenter reiterates its argument that “[f]oremost, as noted above, the affirmative defenses at issue go to questions of liability, not civil penalties. Thus, whether the penalty criteria in CAA section 113(e) are the same or not is entirely beside the point in deciding whether an affirmative defense to liability should be retained.” The commenter further argues that “even if the affirmative defense here goes to the question of penalties, there is no principle of `consistency' between judicial and administrative proceedings.” The commenter cites CAA section 113(d) (“Administrative Assessment of Civile Penalties”), specifically section 113(d)(2)(B) which “affords the EPA entirely separate authority to `compromise, modify, or remit, with or without conditions, any administrative penalty,' ” as evidence that “Congress did not envision, let alone require, that judicial and administrative proceedings `should be consistent.' ” The comment faults the proposed rule for “[giving] no consideration to the discretion provided under section 113(d), in particular the authority 113(d)(2)(B).” The Commenter argues that “by contrast, civil judicial proceedings are bound by the common rules of civil judicial procedure.”

Lastly, the commenter argues that there “is [not] any EPA precedent to consider only factors listed in CAA section 113(e) when determining administrative penalties, as that would contradict EPA's current administrative penalty policies” [ Emphasis added ]. The commenter cites to several EPA decisions and policies that the commenter claims did not rely on CAA section 113(e) criteria in determining administrative penalties. According to the commenter, “EPA has used policies governing administrative penalties for decades without any consideration of CAA section 113(e) and it continues to do so today.” The commenter argues that “EPA's interpretation of how section 113(e) limits its own authority appears to be arbitrarily selective in this instance” because “the Proposed Rule does not consider these contradictory practices and gives no indication that EPA will now abandon these policies and guidance documents in administrative proceedings.”

Response: For the reasons explained below, none of the commenter's arguments justify retaining the affirmative defense provisions in the Oil and Gas NESHAP. The commenter's main argument is that the affirmative defense in the Oil and Gas NESHAP provides for a defense against liability and, as such, is unaffected by the NRDC decision that held unlawful an affirmative defense to penalties in private civil suits. However, the commenter's interpretation of the affirmative defense in the Oil and Gas NESHAP is clearly incorrect as it contradicts the clear language of the affirmative defense in these NESHAP at 40 CFR 63.762(d) and 63.1272(d), which specifically state that “you may assert an affirmative defense to a claim for civil penalties for violations of such standards that are caused by malfunction as defined at 40 CFR 63.2. Appropriate penalties may be assessed if you fail to meet your burden of proving all of the requirements in the affirmative defense.” [ Emphasis added ]. Furthermore, this is the same wording as the affirmative defense in NRDC, 5 and the commenter does not explain how it interprets the same wording differently. We therefore find this argument to be totally without merit. 6

The EPA is also unpersuaded by the commenter's argument that the EPA should retain the affirmative defense in the Oil and Gas NESHAP in administrative cases even if not in judicial proceedings. The commenter claims that the EPA's view that “assessment of penalties for violations caused by malfunctions in administrative proceedings and judicial proceedings should be consistent” is based on CAA section 113(e) and therefore flawed. The commenter argues that CAA section 113(e), which requires both the Administrator and the courts to take specified criteria into consideration when assessing penalties, is “entirely beside the point in deciding whether to retain the affirmative defense to liability” that the commenter claims is in Oil and Gas NESHAP. However, as discussed above, the affirmative defense in the Oil and Gas NESHAP goes to penalty assessment; accordingly, the commenter's argument that CAA section 113(e) is not relevant is incorrect.

The EPA also disagrees with the commenter's argument that retaining the affirmative defense in administrative cases is necessary in light of CAA section 113(d), which the commenter claims leaves “the ability to raise these real-world practical challenges . . . to the unspecified `discretion' of EPA enforcement officials or the presiding officer (an EPA employee) in an administrative proceeding.” But Congress already rejected this view; in enacting CAA section 113(d), Congress was clearly confident with entrusting the EPA with broad authority and discretion in assessing penalty. Further, as the EPA explained in the proposal preamble, “if a source is unable to comply with emissions standards as a result of a malfunction, the EPA may use its case-by-case enforcement discretion to provide flexibility, as appropriate.” 88 FR 83891. In any event, the commenter appears to be expressing a hypothetical concern, as the commenter has not claimed or provided any information indicating that the EPA prohibited or otherwise limited one's ability to raise “real-world concerns” in the penalty assessment stage during an administrative proceeding.

Lastly, contrary to the commenter's assertion, the EPA does not claim that only factors listed in CAA section 113(e) may be considered when determining administrative penalties, nor is there inconsistency between the EPA's interpretation of CAA section 113(e) (as explained in this rulemaking) and the EPA's long-standing policies and practices in penalty assessment. CAA section 113(e) makes clear that, in determining the amount of penalty, the EPA and the courts are not limited to consider only the factors enumerated in that section; they shall also consider “ such other factors as justice may require. ” Accordingly, to the extent that the EPA has focused on other factors, as the commenter claims, the EPA's action is in accordance with the CAA. For the same reason, the EPA rejects the commenter's accusation that the EPA has been determining administrative penalties “without any consideration of CAA section 113(e);” the commenter also offers no evidence that the EPA declined to consider the factors in CAA section 113(e).

For the reasons stated above, the EPA finds that the commenter has not justified retaining the affirmative defense in the Oil and Gas NESHAP.

Sources subject to subparts HH and HHH under 40 CFR part 63, as amended in 1990, section 112.

There are no air quality impacts associated with this action. The affirmative defense provisions did not affect the stringency of the standards in 40 CFR part 63, subparts HH or HHH. The removal of the provisions does not have a material impact on the obligation for sources to comply with current existing standards, or the ability of Federal or state agencies to enforce standards.

There are no cost impacts associated with this action. The affirmative defense provisions did not affect the stringency of the standards in the Oil and Gas NESHAP. The removal of the provisions does not have a material impact on the obligation for sources to comply with current existing standards, or the ability of Federal or state agencies to enforce standards. The EPA estimated a small administrative burden to report deviations from standards as a result of malfunctions that included the option for an owner or operator to offer an affirmative defense. The removal of the affirmative defense provisions does not affect that burden because sources will still be required to report malfunctions that result in a failure to meet the standards. Since the option to invoke an affirmative defense was voluntary, there may be a negligible cost savings for reporting malfunctions by removing these provisions.

There are no economic impacts associated with this action. The affirmative defense provisions did not affect the stringency of the standards in the Oil and Gas NESHAP. The removal of the provisions does not have a material impact on the obligation for sources to comply with current existing standards, or the ability of Federal or state agencies to enforce standards. The EPA estimated a small administrative burden to report deviations from standards as a result of malfunctions that included the option for an owner or operator to offer an affirmative defense. The removal of the affirmative defense provisions does not affect that burden because sources will still be required to report malfunctions that could have resulted in a failure to meet the standards. Since the option to invoke an affirmative defense was voluntary, there may be a negligible cost savings for reporting malfunctions by removing these provisions.

There are no environmental benefits associated with this action. The affirmative defense provisions did not affect the stringency of the standards in the Oil and Gas NESHAP. The removal of the provisions does not have a material impact on the obligation for sources to comply with current existing standards, or the ability of Federal or state agencies to enforce standards.

Additional information about these statutes and Executive Orders can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

This action is not a significant regulatory action as defined in Executive Order 12866, as amended by Executive Order 14094, and was therefore not subject to a requirement for review under Executive Order 12866.

This action does not impose any new information collection burden under the PRA. OMB has previously approved the information collection activities contained in the existing regulations and has assigned OMB control number 2060-0417. The removal of provisions for affirmative defense does not change any mandatory recordkeeping, reporting, or other activity previously established under prior final rules.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. There are no economic impacts associated with this action. The affirmative defense provisions did not affect the stringency of the standards in 40 CFR part 63, subparts HH or HHH. The removal of the provisions does not have a material impact on the obligation for sources to comply with current existing standards, or the ability of Federal or State agencies to enforce standards. We have therefore concluded that this action will have no net regulatory burden for all directly regulated small entities.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or Tribal governments or the private sector.

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

This action does not have Tribal implications as specified in Executive Order 13175. It will not have substantial direct effects on Tribal governments, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this action.

EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. Therefore, this action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk. Since this action does not concern human health, EPA's Policy on Children's Health also does not apply.

This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

This rulemaking does not involve technical standards.

Executive Order 12898 (59 FR 7629, February 16, 1994) directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on communities with environmental justice concerns.

The EPA believes that this action does not concern human health or environmental conditions and therefore cannot be evaluated with respect to potentially disproportionate and adverse effects on communities with environmental justice concerns. This action does not change the underlying standards that have an impact on human health and the environment.

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

For the reasons stated in the preamble, the Environmental Protection Agency (EPA) amends Title 40, chapter I, of the Code of Federal Regulations (CFR) as follows:

Background

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

At its September 2024 meeting, the Council recommended an assortment of modifications that included corrections and adjustments, to commercial fixed gear trip limits and incidental catch limits, for limited entry (LE) and open access (OA) fisheries for the remainder of 2024. Stocks and complexes with recommended changes included the other fish complex south of 40°10′ N lat., minor nearshore rockfish south of 40°10′ N lat., and cabezon in California. Potential changes were analyzed and ultimately recommended after updated information regarding projected catch and attainment became available, as well as requests from industry.

Pacific Coast groundfish fisheries are managed using harvest specifications or limits ( e.g., overfishing limits, acceptable biological catch, annual catch limits and harvest guidelines) recommended biennially by the Council and based on the best scientific information available at that time (50 CFR 660.60(b)). During development of the harvest specifications, the Council also recommends management measures ( e.g., trip limits, area closures, and bag limits) that are meant to control catch so as not to exceed the harvest specifications. The harvest specifications and management measures developed for the 2023-2024 biennium used data through the 2021 fishing year. Each of the adjustments to management measures discussed below are based on updated fisheries information that was unavailable when the analysis for the current harvest specifications was completed. As new fisheries data becomes available, adjustments to management measures are projected so as to help harvesters achieve but not exceed the harvest limits.

In the September 2024 meeting, the Council recommended that the trip limit for the “other fish” complex be changed from zero pounds (lb) per 2 months, to unlimited for the limited entry fixed gear (LEFG) fishery south of 40°10′ N lat. during November and December of 2024 (table 1), to correct an inadvertent change made in the inseason action from November 2023, which became effective in January 2024.

The Council recommended at their September 2024 meeting, in agreement with analyses by the Council's Groundfish Management Team (GMT) and the California Department of Fish and Wildlife (CDFW), discussion with the Groundfish Advisory Subpanel and enforcement consultants, to change the management lines on LEFG and open access (OA) trip limits in Federal regulation for cabezon in California, as well as shallow and deeper nearshore rockfish (within the minor nearshore rockfish south of 40°10′ N lat. complex) from 36° N lat. to 37°07′ N lat. (tables 2 and 3). This was done to align trip limits with current non-trawl rockfish conservation area boundaries (implemented April 1, 2024), align State and Federal regulations, prevent regulatory and enforcement confusion, and to better serve conservation needs of quillback rockfish (recently designated as overfished), while minimizing corresponding constraints to fishery participants by utilizing more spatially precise management measures. Similar changes were recommended in March 2024 (implemented April 2024) for lingcod, shelf rockfish, and other flatfish, to allow more spatially precise management measures, for both better quillback conservation, and better concurrent access to other target species. CDFW has taken State action to move their latitude line for quillback related closures from 36° to 37°07′ N lat. for the same reasons (State/Federal coordination, and benefits of spatially precise management).

Therefore, the Council recommended and NMFS is implementing, by modifying table 2 South to part 660, subpart E, and table 3 South to part 660, subpart F, changes to the management lines on LEFG and OA trip limits in Federal regulation for cabezon in California, as well as shallow and deeper nearshore rockfish (both part of the minor nearshore rockfish south of 40°10′ N lat. complex) from 36° N lat. to 37°07′ N lat. (tables 2 and 3). These changes will start with Period 5 (November and December) and remain in place through the end of 2024 and beyond, unless otherwise modified.

Pacific halibut is internationally managed by the International Pacific Halibut Commission and NMFS. A catch sharing plan is published each year by NMFS; the 2024 plan (89 FR 19275, March 18, 2024) states that the non-treaty incidental catch in sablefish fishery (north of Pt. Chehalis) is 50,000 lb (22.7 metric tons). At the September 2024 meeting, the Council recommended to increase retention limits for the remainder of 2024, for incidental catch of Pacific halibut in the primary sablefish fishery north of Pt. Chehalis. This would represent an increase from the current limit in regulation of 130 lb (59 kg) of halibut per 1,000 lb (454 kg) of dressed sablefish plus two halibut, to 150 lb (68 kg) of halibut per 1,000 lb (454 kg) of dressed sablefish plus two halibut. This action was requested in order to help sablefish fishers north of Pt. Chehalis increase the utilization of their sablefish allocation without exceeding the halibut allocation. The GMT projected an inconsequential increase in already low attainment of the incidental halibut limit, from 52 to 55 percent, if the measure were implemented (table 4).

Therefore, the Council recommended and NMFS is implementing, by modifying regulation text in § 660.60, paragraph (b)(3)(iv) to read as follows: “Incidental Pacific halibut retention north of Pt. Chehalis, WA (46°53.30′ N lat.). From April 1 through the closure date set by the International Pacific Halibut Commission for Pacific halibut in all commercial fisheries, vessels authorized to participate in the sablefish primary fishery, licensed by the International Pacific Halibut Commission for commercial fishing in Area 2A (waters off Washington, Oregon, California), and fishing with longline gear north of Pt. Chehalis, WA (46°53.30′ N lat.) may possess and land up to 150 lb (68 kg) dressed weight of Pacific halibut for every 1,000 lb (454 kg) dressed weight of sablefish landed, and up to two additional Pacific halibut in excess of the 150-lb-per-1,000-lb limit per landing. NMFS publishes the International Pacific Halibut Commission's regulations setting forth annual management measures, including the closure date for Pacific halibut in all commercial fisheries, in the Federal Register by March 15 each year, 50 CFR 300.62. “Dressed” Pacific halibut in this area means halibut landed eviscerated with their heads on. Pacific halibut taken and retained in the sablefish primary fishery north of Pt. Chehalis may only be landed north of Pt. Chehalis and may not be possessed or landed south of Pt. Chehalis.”

This final rule makes routine inseason adjustments to groundfish fishery management measures, based on the best scientific information available, consistent with the PCGFMP and its implementing regulations.

This action is taken under the authority of 50 CFR 660.60(c) and is exempt from review under Executive Order 12866.

The aggregate data upon which these actions are based, are available for public inspection by contacting Dr. Sean Matson in NMFS West Coast Region (see FOR FURTHER INFORMATION CONTACT , above), or view at the NMFS West Coast Groundfish website: https://www.fisheries.noaa.gov/species/west-coast-groundfish.

Pursuant to 5 U.S.C. 553(b), NMFS finds good cause to waive prior public notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest. The adjustments to management measures in this document update management line designations on trip limits for cabezon in California, and minor nearshore rockfish south of 40°10′ N lat., and allow additional incidental retention of bycaught Pacific halibut north of Pt. Chehalis to allow additional economic opportunity while keeping catch within allocations established by the 2023-2024 harvest specifications, and the 2024 halibut catch sharing plan, respectively.

The latitude line changes on trip limits in the LE and OA sectors are necessary to enable and spatially precise management for adequate conservation, and to minimize catch of quillback rockfish, which was recently determined to be overfished (NMFS notified the Council of the overfished status determination for quillback rockfish on December 14, 2023), while allowing fishing for other species to continue in areas where it may otherwise need to be closed if the changes were not made. The changes also are necessary to enable effective enforcement by aligning spatial management for these species across State and Federal waters boundaries. Increases to retention of incidentally caught halibut are necessary to enable more effective attainment of the sablefish allocation without exceeding the halibut allocation.

Delaying implementation to allow for public comment would likely reduce the economic benefits to the commercial fishing industry and the businesses that rely on that industry, because it is unlikely the new regulations would publish and could be implemented in time to realize the projected benefits to fishing communities and the resource. A delay in implementation could also contribute to unnecessarily discarded and largely wasted fish, which could otherwise be landed to provide food and revenue, and responsible use of the resource. Therefore, providing a comment period for this action could significantly limit the economic benefits to the fishery, and would hamper the achievement of optimum yield from the affected fisheries.

Therefore, the NMFS finds reason to waive the 30-day delay in effectiveness pursuant to 5 U.S.C. 553(d)(1) so that this final rule may become effective upon publication in the Federal Register . The adjustments to management measures in this document affect fisheries by increasing opportunity and allowing greater economic benefit. These adjustments were requested by the Council's advisory bodies, as well as members of industry during the Council's September 2024 meeting, and recommended unanimously by the Council. No aspect of this action is controversial, and changes of this nature were anticipated in the biennial harvest specifications and management measures established through a notice and comment rulemaking for 2023-2024 (87 FR 77007).

For the reasons set out in the preamble, NMFS amends 50 CFR part 660 as follows:

Background Pacific Whiting

Pacific whiting ( Merluccius productus ) is a very productive species with highly variable recruitment (the biomass of fish that mature and enter the fishery each year) and a relatively short life span compared to other groundfish species. Pacific whiting has the largest annual allowable harvest levels (by volume) of the more than 90 groundfish species managed under the Pacific Coast Groundfish Fishery Management Plan (FMP), which governs the groundfish fishery off Washington, Oregon, and California. The coastwide Pacific whiting stock is managed jointly by the United States and Canada, and mature Pacific whiting are commonly available to vessels operating in U.S. waters from April through December. Background on the stock assessment, and the establishment of the 2024 Total Allowable Catch (TAC), for Pacific whiting was provided in the final rule for the 2024 Pacific whiting harvest specifications, published June 24, 2024 (89 FR 52398). Pacific whiting is allocated to the Pacific Coast treaty tribes (tribal fishery) and to three non-tribal commercial sectors: the catcher/processor cooperative (C/P Co-op), the mothership cooperative (MS Co-op), and the Shorebased Individual Fishery Quota (IFQ) Program.

This notice announces the reapportionment of 45,000 metric tons (mt) of Pacific whiting from the tribal allocation to the non-tribal commercial sectors. This reapportionment was effective on September 26, 2024. Regulations at 50 CFR 660.131(h) contain provisions that allow the Regional Administrator to reapportion Pacific whiting from the tribal allocation, specified at 50 CFR 660.50, that will not be harvested by the end of the fishing year to other sectors.

For 2024, the Pacific Coast treaty tribes were allocated 71,755.95 mt of Pacific whiting. The best available information on September 15, 2024, indicated that at least 45,000 mt of the tribal allocation would not be harvested by December 31, 2024. As required under the 2017 Endangered Species Act section 7(a)(2) biological opinion on the effects of the Pacific Coast Groundfish Fishery Management Plan on listed salmonids, NMFS considered the number and bycatch rate of Chinook salmon taken by the Pacific whiting fishery sectors prior to reapportionment. Based on the best available information in September 2024, NMFS determined there is low risk that the reapportionment will cause the Pacific whiting sector fisheries to exceed both the guideline limit of 11,000 and reserve of 3,500 Chinook salmon under current regulations and practices. At the time of this notice, incidental take of Chinook salmon by the non-tribal sectors is five percent of the guideline limit. NMFS will continue to monitor Chinook salmon bycatch as part of inseason management.

To allow for increased utilization of the resource, on September 26, 2024, NMFS reapportioned 45,000 mt from the tribal allocation to the Shorebased IFQ Program, C/P Co-op, and MS Co-op in proportion to each sector's original allocation. Reapportioning this amount is expected to allow for greater attainment of the TAC while not limiting tribal harvest opportunities for the remainder of the year. NMFS provided notice of the reapportionment on September 26, 2024, via emails sent directly to fishing businesses and individuals. Reapportionment was effective the same day as the notice.

The amounts of Pacific whiting available for 2024 before and after the reapportionment are described in table 1 below.

NOAA's Assistant Administrator for Fisheries (AA) finds that good cause exists for this notification to be issued without affording prior notice and opportunity for public comment pursuant to 5 U.S.C. 553(b)(B), because such notification would be impracticable and contrary to the public interest. As previously noted, NMFS provided actual notice of the reapportionment to fishery participants at the time of the action. Prior notice and opportunity for public comment on this reapportionment was impracticable because NMFS had insufficient time to provide prior notice between the time the information about the progress of the fishery needed to make this determination became available and the time at which fishery modifications had to be implemented in order to allow fishery participants access to the available fish during the remainder of the fishing season. For the same reasons, the AA also finds good cause to waive the 30-day delay in effectiveness for these actions, required under 5 U.S.C. 553(d)(3).

These actions are authorized by 50 CFR 660.55(i), 660.60(d), and 660.131(h) and are exempt from review under Executive Order 12866.