The Entity List (supplement no. 4 to part 744 of the EAR (15 CFR parts 730-774)) identifies entities for which there is reasonable cause to believe, based on specific and articulable facts, that the entities have been involved, are involved, or pose a significant risk of being or becoming involved in activities contrary to the national security or foreign policy interests of the United States, pursuant to § 744.11(b). The EAR impose additional license requirements on, and limit the availability of, most license exceptions for exports, reexports, and transfers (in-country) when a listed entity is a party to the transaction. The license review policy for each listed entity is identified in the “License Review Policy” column on the Entity List, and the impact on the availability of license exceptions is described in the relevant Federal Register document that added the entity to the Entity List. The Bureau of Industry and Security (BIS) places entities on the Entity List pursuant to part 744 (Control Policy: End-User and End-Use Based) and part 746 (Embargoes and Other Special Controls) of the EAR.

The End-User Review Committee (ERC), composed of representatives of the Departments of Commerce (Chair), State, Defense, Energy and, where appropriate, the Treasury, makes all decisions regarding additions to, removals from, or other modifications to the Entity List. The ERC makes all decisions to add an entry to the Entity List by majority vote and makes all decisions to remove or modify an entry by unanimous vote.

The ERC determined to add one entity to the Entity List: Agrim Aviation Private Limited, under the destination of India. This addition is being made because the entity has diverted or attempted to divert U.S.-origin items to Russia without prior authorization from BIS. These shipments were likely diverted to a party in Russia's aerospace sector who is subject to a BIS Temporary Denial Order. In addition, the entity has engaged in dilatory, evasive, or misleading behavior regarding the importation of U.S.-origin items that effectively prevented end-use checks (EUCs) from occurring or made the EUCs inaccurate. This activity is contrary to U.S. national security and foreign policy interests under § 744.11 of the EAR. A license is required for all items subject to the EAR. License applications will be reviewed under a presumption of denial.

The ERC determined to add five entities to the Entity List: Federal State Budgetary Institute A.V. Zhirmunskiy National Scientific Research Center of Marine Biology, Far East Branch, Russian Academy of Sciences; Federal State Budgetary Institution of Science Institute of Bioorganic Chemistry named after Academicians M.M. Shemyakin and Yu.A. Ovchinnikov, Russian Academy of Sciences; Federal State Budgetary Institution of Science Institute of Fundamental Problems of Biology, Russian Academy of Sciences; Federal State Budgetary Institution of Science Institute of Molecular and Cell Biology, Siberian Branch of the Russian Academy of Sciences; and Federal State Unitary Enterprise Scientific Center Signal under the destination of Russia. Specifically, these entities have engaged in research, production, and/or attempted procurement of materials in support of Russia's chemical and biological warfare (CBW) program. These activities are contrary to U.S. national security and foreign policy interests under § 744.11. These entities will receive footnote 3 designations because the ERC has determined that they are Russian or Belarusian `military end users' pursuant to § 744.21. A footnote 3 designation subjects these entities to the Russia/Belarus-Military End User and Procurement Foreign Direct Product (FDP) rule, detailed in § 734.9(g). These entities are added with a license requirement for all items subject to the EAR and a license review policy of denial for all items subject to the EAR apart from food and medicine designated as EAR99, which will be reviewed on a case-by-case basis.

The ERC determined to add four entities to the Entity List: Supra Tech Sdn Bhd under the destination of Malaysia; and Ix Medikal Buro Malzemeleri Ticaret Limited Sirketi, Panorama Invest Dis Ticaret As, and Union Trade Turkey Makina Ithalat Ve Ihracat Limited Sirketi under the destination of Turkey. These entities are added for the transshipment of sensitive U.S.-origin goods to Russia that would contribute to their defense industrial base. The ERC has determined that these entities qualify as Russian Procurement Entities under § 734.9(g) of the EAR and are receiving a footnote 3 designation due to their significant risk of involvement in the supply or diversion of items subject to the EAR to procurement networks for Russia's defense industry or intelligence services. A footnote 3 designation subjects these entities to the Russia/Belarus-Military End User and Procurement Foreign Direct Product (FDP) rule, detailed in § 734.9(g). These entities are added with a license requirement for all items subject to the EAR. They are added with a license review policy of denial.

The ERC determined to add two entities to the Entity List: FUTREVO and Theorax Dynamics Private Limited under the destination of India. These entities are added for procuring or attempting to procure items in support of Russia's military and/or defense industrial base. Specifically, these two entities have supplied U.S.-origin and/or U.S.-branded components to a sanctioned entity known to procure foreign components for Russian drone production. This activity is contrary to U.S. national security and foreign policy interests under Section § 744.11 of the EAR. The ERC has determined that these entities qualify as Russian Procurement Entities under § 734.9(g) of the EAR and are receiving a footnote 3 designation due to their involvement in the supply or diversion of items subject to the EAR to procurement networks for Russia's defense industry or intelligence services. A footnote 3 designation subjects these entities to the Russia/Belarus-Military End User and Procurement Foreign Direct Product (FDP) rule, detailed in § 734.9(g). These entities are added with a license requirement for all items subject to the EAR. They are added with a license review policy of denial for all items subject to the EAR.

The ERC determined to add the following two entities to the Entity List: Analog Technology Limited, under the destinations of China and India, and Avrora India Marine Systems Pvt., Ltd., under the destination of India. These entities are added for continuing to procure or attempting to procure items in support of Russia's military and/or defense industrial base. Specifically, these entities have supplied U.S.-origin and U.S.-branded components to Russian entities that have been sanctioned since Russia's further invasion of Ukraine or are otherwise linked to the Russian defense industrial base. This activity is contrary to U.S. national security and foreign policy interests under § 744.11 of the EAR. The ERC has determined that these entities qualify as Russian Procurement Entities under § 734.9(g) of the EAR and are receiving a footnote 3 designation due to their significant risk of involvement in the supply or diversion of items subject to the EAR to procurement networks for Russia's defense industry or intelligence services. A footnote 3 designation subjects these entities to the Russia/Belarus-Military End User and Procurement Foreign Direct Product (FDP) rule, detailed in § 734.9(g). These entities are added with a license requirement for all items subject to the EAR. They are added with a license review policy of denial.

The ERC determined to add four entities to the Entity List: LLC A-K-S, under the destination of Russia; and Shenzhen True Price Technology Co., Ltd.; Woke Trading H.K. Limited; and Woke Trading Hongkong Limited under the destination of China. These entities are added for engaging in the transshipment of sensitive, controlled, U.S.-origin goods to Russia. This activity is contrary to U.S. national security and foreign policy interests under § 744.11 of the EAR. The ERC has determined that these entities qualify as Russian Procurement Entities under § 734.9(g) of the EAR and are receiving a footnote 3 designation due to a significant risk of their involvement in the supply or diversion of items subject to the EAR to procurement networks for Russia's defense industry or intelligence services. A footnote 3 designation subjects these entities to the Russia/Belarus-Military End User and Procurement Foreign Direct Product (FDP) rule, detailed in § 734.9(g). These entities are added with a license requirement for all items subject to the EAR. They are added with a license review policy of denial for all items subject to the EAR.

The ERC determined to add 12 entities to the Entity List: Atlas Trade Dis Ticaret Limited, Aviatech Havacilik Sanayi Ve Yedek Parcalari Ltd Sti, B2M Lojistik Ve Dis Ticaret Anonim Sirketi, DML Group Makine Pazarlama Ic Ve Dis Ticaret Ltd Sirketi, Madena Otomotiv Insaat Elektronik Tic Ltd, Mia Antalya Insaat Sanayi Ve Ticaret A.S., RLY Ic Ve Dis Ticaret Limited Sirketi, TDT Havacilik Bakim Ve Ticaret, Ultimate Havacilik Hizmetleri Limited Sirketi, and Yildiz Cip Teknoloji Elektronik Elektrik Bilg. Malz. Tic. San. Ltd. Sti., under the destination of Turkey; and one entity, Reka Grup Danismanlik ve Tic Ltd Sti., under the destinations of Malaysia and Turkey. These companies have diverted or attempted to divert controlled U.S.-origin items to Russia without prior authorization from BIS. In addition, these companies have engaged in dilatory, evasive, or misleading behavior regarding the importation of U.S.-origin items during end-use checks (EUCs). These activities are contrary to U.S. national security and foreign policy interests under § 744.11 of the EAR. The ERC has determined that these entities qualify as Russian Procurement Entities under § 734.9(g) of the EAR and they are receiving a footnote 3 designation due to their significant risk of involvement in the supply or diversion of items subject to the EAR to procurement networks for Russia's defense industry or intelligence services. A footnote 3 designation subjects these entities to the Russia/Belarus-Military End User and Procurement Foreign Direct Product (FDP) rule, detailed in § 734.9(g). These entities are added with a license requirement for all items subject to the EAR. They are added with a license review policy of denial.

The ERC determined to add four addresses, all under the destination of China, to the Entity List. These addresses are denoted as Address 12, 13, 14, and 15. These addresses are associated with significant transshipment of sensitive goods to Russia and are also associated with a significant number of entities whose activities risk violating the EAR. These risks include associations with parties on the U.S. Department of the Treasury's Specially Designated Nationals (SDN) List and entities on the Entity List. These activities are contrary to U.S. national security and foreign policy interests under § 744.11 of the EAR. Licenses will be required for all entities at these addresses for all items on the Commerce Control List and EAR99 items listed in supplement no. 7 to part 746 of the EAR. License applications will be reviewed with a license review policy of presumption of denial.

The ERC determined to add TechCamel Pte. Ltd., under the destination of Singapore, to the Entity List. This entity is added because it has supplied U.S.-origin aircraft parts to Russia without prior authorization from BIS, as required. This activity is contrary to U.S. national security and foreign policy interests under § 744.11 of the EAR. The ERC has determined that this entity qualifies as a Russian Procurement Entity under § 734.9(g) of the EAR and is receiving a footnote 3 designation due to its significant risk of involvement in the supply or diversion of items subject to the EAR to procurement networks for Russia's defense industry or intelligence services. A footnote 3 designation subjects this entity to the Russia/Belarus-Military End User and Procurement Foreign Direct Product (FDP) rule, detailed in § 734.9(g). This entity is added with a license requirement for all items subject to the EAR. It is added with a license review policy of denial.

The ERC determined to add Beijing Aerospace Hill Test Technology Co., Ltd.; Suzhou Tiangong Mechanics Testing Technology Co., Ltd.; and Suzhou Tiangong Testing Technology Co., Ltd., under the destination of China, to the Entity List. These entities are added for acquiring and attempting to acquire U.S.-origin items related to vibration tables which have explicit military applications and subsequently supplying Chinese entities on the Entity List. Additionally, Beijing Aerospace Hill Test Technology Co., Ltd. has been involved in the shipment of controlled items to Russia since Russia's full-scale invasion of Ukraine in February 2022. This activity is contrary to the national security and foreign policy interests of the United States under § 744.11 of the EAR. These entities are added with a license requirement for all items subject to the EAR and licenses will be reviewed under a presumption of denial.

For the reasons described above, this final rule adds the following 40 entities and four addresses under 46 entries to the Entity List and includes, where appropriate, aliases:

• Analog Technology Limited,

• Address 12,

• Address 13,

• Address 14,

• Address 15,

• Beijing Aerospace Hill Test Technology Co., Ltd.,

• Shenzhen True Price Technology Co., Ltd.,

• Suzhou Tiangong Mechanics Testing Technology Co., Ltd.,

• Suzhou Tiangong Testing Technology Co., Ltd.,

• Woke Trading H.K. Limited, and

• Woke Trading Hongkong Limited.

• Agrim Aviation Private Limited,

• Analog Technology Limited,

• Avrora India Marine Systems Pvt., Ltd.,

• FUTREVO, and

• Theorax Dynamics Private Limited.

• Supra Tech Sdn Bhd.; and

• Reka Grup Danismanlik ve Tic Ltd Sti.

• Bespilotnye Sistemy LLC,

• Federal State Budgetary Institute A.V. Zhirmunskiy National Scientific Research Center of Marine Biology, Far East Branch, Russian Academy of Sciences,

• Federal State Budgetary Institution of Science Federal Research Center Pushchino Scientific Center for Biology, Russian Academy of Sciences,

• Federal State Budgetary Institution of Science Institute of Bioorganic Chemistry named after Academicians M.M. Shemyakin and Yu.A. Ovchinnikov, Russian Academy of Sciences,

• Federal State Budgetary Institution of Science Institute of Molecular and Cell Biology, Siberian Branch of the Russian Academy of Sciences,

• Federal State Unitary Enterprise Scientific Center Signal,

• Fincor LLC,

• Finko LLC,

• JSC Zavod Kopir,

• LLC A-K-S,

• OOO IAZ,

• Pavlin Techno LLC, and

• Superkam LLC.

• TechCamel Pte. Ltd.

• Atlas Trade Dis Ticaret Limited,

• Aviatech Havacilik Sanayi Ve Yedek Parcalari Ltd Sti,

• B2M Lojistik Ve Dis Ticaret Anonim Sirketi,

• DML Group Makine Pazarlama Ic Ve Dis Ticaret Ltd Sirketi,

• Ix Medikal Buro Malzemeleri Ticaret Limited Sirketi,

• Madena Otomotiv Insaat Elektronik Tic Ltd,

• Mia Antalya Insaat Sanayi Ve Ticaret A.S.,

• Panorama Invest Dis Ticaret As,

• Reka Grup Danismanlik ve Tic Ltd Sti,

• RLY Ic Ve Dis Ticaret Limited Sirketi,

• TDT Havacilik Bakim Ve Ticaret,

• Ultimate Havacilik Hizmetleri Limited Sirketi,

• Union Trade Turkey Makina Ithalat Ve Ihracat Limited Sirketi, and

• Yildiz Cip Teknoloji Elektronik Elektrik Bilg., Malz., Tic., San., Ltd., Sti.

The ERC determined to modify the following 49 entities under 52 existing entries on the Entity List: Ace Electronics (HK) Co., Limited, Alliance Electro Tech Co., Alpha Trading Investments Limited, Asialink Shanghai Int'l Logistics Co., Ltd., Benico Limited, Check IC Solution Limited, Chengdu Jingxin Technology Co., Ltd., E-Chips Solution Co., Ltd., Farteco Limited, Glite Electronic Technology Co., Global Broker Solutions Limited, Grants Promotion Service Limited, Guangdong Munpower Electronic Commerce Co., Ltd., Huayuanshitong Technology Co., Ltd., IMAXChip, Insight Electronics, Kingford PCB Electronics Co., Ltd., Kobi International Company, Most Technology Limited, New Wally Target International Trade Co., Nuopuxun Electronic Technology Co., Onstar Electronics Co., Ltd., Robotronix Semiconductors Limited, Rui En Koo Technology Co., Ltd, Shaanxi Yingsaeir Electronic Technology Co., Ltd., Shanghai IP3 Information Technology Co., Ltd., Shenzhen One World International Logistics Co., Shvabe Opto-Electronics Co., LTD., Suntop Semiconductor Co., LTD., Tordan Industry Limited, TYT Electronics Co., Ltd., UCreate Electronics Group, Wargos Industry Limited, Win Key Limited, Xin Quan Electronics Hong Kong Co., ZeYuan Technology Limited, Zhejiang Foso Electronics Technology Co., Ltd., Zixis Limited, and Zone Chips Electronics Hong Kong Co., Limited, under the destination of China; Elmec Trade OU under the destination of Estonia; Abhar Technologies and Services Private Limited, Si2 Microsystems Private Limited, and Innovio Ventures under the destination of India; LL Chip Elektrik Elektronic Paz and Scitech Tasimacilik Ticaret Limited under the destination of Turkey; Hulm al Sahra Elect Devices TR under the destination of the UAE; Photon Pro LLP under the destination of the UK; C & I Semiconductor Co., Ltd. under the destinations of China and India; China Shengshi International Trade Ltd., under the destinations of China and the UK; and PT Technology Asia Limited under the destinations of China and Finland. These entities pose a significant risk of involvement in the supply or diversion of items subject to the EAR to procurement networks for Russia's defense industry or intelligence services. Therefore, each of these entities is being modified to have a footnote 3 designation on the Entity List, subjecting them to the Russia/Belarus-Military End User and Procurement Foreign Direct Product (FDP) rule, detailed in § 734.9(g). These entities were previously added to the Entity List in October 2023 with a license requirement for all items subject to the EAR and a license review policy of denial. See 88 FR 70352 (Oct. 11, 2023). This license requirement and licensing policy will continue to apply for these entities, including for transactions involving items subject to the EAR under § 734.9(g) of the EAR.

For the changes being made in this final rule, shipments of items removed from eligibility for a License Exception or export, reexport, or transfer (in-country) without a license (NLR) as a result of this regulatory action that were en route aboard a carrier to a port of export, reexport, or transfer (in-country), on November 1, 2024, pursuant to actual orders for export, reexport, or transfer (in-country) to or within a foreign destination, may proceed to that destination under the previous eligibility for a License Exception or export, reexport, or transfer (in-country) without a license (NLR) before December 2, 2024. Any such items not actually exported, reexported, or transferred (in-country) before midnight, on December 2, 2024, require a license in accordance with this final rule.

On August 13, 2018, the President signed into law the John S. McCain National Defense Authorization Act for Fiscal Year 2019, which included the Export Control Reform Act of 2018 (ECRA) (50 U.S.C. 4801-4852). ECRA provides the legal basis for BIS's principal authorities and serves as the authority under which BIS issues this rule. In particular, Section 1753 of ECRA (50 U.S.C. 4812) authorizes the regulation of exports, reexports, and transfers (in-country) of items subject to U.S. jurisdiction. Further, Section 1754(a)(1)-(16) of ECRA (50 U.S.C. 4813(a)(1)-(16)) authorizes, inter alia, establishing and maintaining a list of foreign persons and end-uses that are determined to be a threat to the national security and foreign policy of the United States pursuant to the policy set forth in Section 1752(2)(A), and restricting exports, reexports, and in-country transfers of any controlled items to any foreign person or end-use so listed; apprising the public of changes in policy, regulations, and procedures; and any other action necessary to carry out ECRA that is not otherwise prohibited by law. Pursuant to Section 1762(a) of ECRA (50 U.S.C. 4821(a)), these changes can be imposed in a final rule without prior notice and comment.

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

2. Notwithstanding any other provision of law, no person is required to respond to or be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This regulation involves an information collection approved by OMB under control number 0694-0088, Simplified Network Application Processing System. BIS does not anticipate a change to the burden hours associated with this collection as a result of this rule. Information regarding the collection, including all supporting materials, can be accessed at https://www.reginfo.gov/public/do/PRAMain.

3. This rule does not contain policies with federalism implications as that term is defined in Executive Order 13132.

4. Pursuant to section 1762 of the Export Control Reform Act of 2018, this action is exempt from the Administrative Procedure Act (5 U.S.C. 553) requirements for notice of proposed rulemaking, opportunity for public participation, and delay in effective date.

5. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., are not applicable. Accordingly, no regulatory flexibility analysis is required, and none has been prepared.

Accordingly, part 744 of the Export Administration Regulations (15 CFR parts 730-774) is amended as follows:

In response to Russia's February 2022 full-scale invasion of Ukraine, BIS imposed extensive export controls on Russia under the EAR as part of the final rule, “Implementation of Sanctions Against Russia Under the Export Administration Regulations (EAR)” (“Russia Sanctions Rule”) (87 FR 12226, March 3, 2022). To address Belarus's complicity in the invasion, BIS imposed similar export controls on Belarus under the EAR in a final rule, “Implementation of Sanctions Against Belarus” (“Belarus Sanctions Rule”) (87 FR 13048, March 6, 2022). Since March 2022, BIS has published numerous final rules strengthening the export controls on Russia and Belarus, including measures undertaken in coordination with U.S. allies and partners.

BIS is amending the EAR (15 CFR parts 730-744) to strengthen export controls against Russia and Belarus by expanding the scope of the Russian and Belarusian Industry Sector Sanctions and clarify the applicability of the Entity List FDP rules. BIS in this final rule is also making adjustments to exclusions, exceptions, and licensing policy for exports, reexports, or transfers (in-country) of items for the official business of diplomatic or consular missions of the governments of Country Group A:5 and A:6 destinations that are located in Russia and Belarus.

The Export Control Reform Act (ECRA) provides the legal basis for BIS's principal authorities and serves as the authority under which BIS issues this rule.

The three sets of changes this final rule makes are described in section II as follows:

A. Additions to supplement no. 6 to part 746 to control nine key precursors for riot control agents and a chemical weapon that Russia has deployed against Ukraine;

B. Changes related to governments of Country Group A:5 and A:6 destinations for certain exclusions, license exception eligibility, and licensing policy; and

C. Clarifying that the Entity List FDP rules' license requirement extends to or within any destination or to any end user or party that otherwise meets the criteria.

The U.S. Department of Commerce is expanding controls under the EAR to include certain chemical precursors that are essential for the “production” of chemical riot control agents (RCAs) and chloropicrin that Russia has deployed against Ukraine in violation of the Chemical Weapons Convention (CWC). These new regulatory restrictions, which are specific to Russia and Belarus, aim to limit the use of these chemical precursors in the context of the war in Ukraine.

RCAs such as tear gas and other crowd dispersal chemicals have the potential for misuse in the context of armed conflict. While RCAs are commonly used by law enforcement, their use as a method of warfare is prohibited by Article I of the CWC. Chloropicrin is a toxic chemical included on Schedule 3 of the CWC's Annex on Chemicals. Its use against Ukrainian armed forces constitutes use of a chemical weapon and is also prohibited under Article I of the CWC.

On April 4, 2024, the Department of State published its annual report to Congress on Compliance with the Chemical Weapons Convention (CWC), which stated that Russia had used RCAs as a method of warfare against Ukrainian forces in violation of the CWC. This report concluded that “the United States assesses that Russia has repeatedly used RCAs as a method of warfare across the frontlines in Ukraine.” On May 1, 2024, the Department of State announced that it had made a determination pursuant to the Chemical and Biological Weapons Control and Warfare Elimination Act of 1991 (CBW Act of 1991) (22 U.S.C. 5604-5605) that Russia had used chloropicrin against Ukrainian troops in violation of the CWC (see May 1, 2024 State Dept. Fact Sheet (Imposing New Measures on Russia for its Full-Scale War and Use of Chemical Weapons Against Ukraine)). On June 7, 2024, in connection with this determination under the CBW Act of 1991, the Acting Under Secretary of State for Political Affairs imposed restrictions on Russia, including on arms sales and related financing. The Federal Register Notice announcing these restrictions made reference to the export controls that Commerce maintains on Russia under parts 744 and 746 (see 89 FR 48701, June 7, 2024).

Russia's use of RCAs as a method of warfare and its use of chloropicrin as a chemical weapon during its war of aggression in Ukraine raise concerns about Russia's further production and weaponization of these chemicals. Controlling the export of key chemical precursors, therefore, represents a critical step toward preventing the misuse of these chemicals in furtherance of Russia's military efforts.

This final rule builds upon a BIS final rule that imposed controls on two precursors of chloropicrin, nitromethane and picric acid, as part of a set of restrictions on Russia and Belarus by targeting chemicals that could be useful for Russia's chemical and biological weapons production capabilities or diverted from Belarus to Russia for these activities of concern (87 FR 57068, September 16, 2022). Adding additional chemical precursors of chloropicrin in this current rule further supports that objective.

In assessing whether to impose these new controls, it is important to acknowledge that the chemical precursors listed for control play a significant role in civilian applications. For example, these chemical precursors are used in the production of pharmaceuticals for treating respiratory ailments and in anesthetic formulations. In agriculture, these precursor chemicals can function as pest control agents or can be used for the production of fertilizers, both crucial to food security and medical treatments. Recognizing these civilian applications, these new controls are narrowly tailored to apply only to Russia and Belarus. The restrictions address the CWC Treaty's objective regarding the need to guard against the potential misuse of these chemical precursors while ensuring continuing exports, reexports, and transfers (in-country) as part of supply chains related to legitimate use under the CWC, particularly in medical and agricultural sectors, in all destinations, which for purposes of license applications for Russia and Belarus is addressed under the case-by-case license review policy under § 746.8(b)(3)(iii).

Therefore, this final rule adds a new paragraph (i) (Precursors for riot control agents and chloropicrin as follows) to supplement no. 6 to part 746 to control certain precursors of CS (o-Chlorobenzylidenemalononitrile or o-Chlorobenzalmalononitrile) (CAS 2698-41-1); CN (Phenylacyl chloride or w-Chloroacetophenone) (CAS 532-27-4); and Trichloro(nitro)methane (Chloropicrin—CAS 76-06-2) and CR (Dibenzoxazpine—CAS 257-07-8). Specifically, this final rule adds paragraphs (i)(1) through (9) to describe these chemical precursors that will be controlled under the EAR's Russian and Belarusian Industry Sector Sanctions. The chemical precursors listed below may be utilized in the production of RCAs and chloropicrin:

These expanded controls will supplement the existing CCL controls under ECCNs 1A984, 1C607, and 1C350. BIS estimates that these changes will result in an increase of ten license applications submitted to BIS annually.007

This final rule makes the following changes to reduce the licensing burden on certain government entities located in Russia and Belarus by granting them the same eligibility for certain exclusions, license exceptions, and licensing policy as is currently available for private sector entities headquartered in Country Group A:5 and A:6 countries.

1. Addition of license exception eligibility in § 746.8(c)(2)(vi) for official business of diplomatic or consular missions of the governments of Country Group A:5 and A:6 destinations

In § 746.8, this final rule expands the scope of paragraph (c)(2)(vi) to add the phrase “or for the official business of diplomatic or consular missions of the governments of Country Group A:5 and A:6 destinations” that are operating in Russia or Belarus as entities eligible under this paragraph to receive items under License Exception Encryption commodities, software, and technology (ENC). In order to receive items under License Exception ENC, the export, reexport, or transfer (in-country) would also need to not be restricted under § 740.2 and meet all of the applicable terms and conditions of License Exception ENC under § 740.17. The addition of license exception eligibility for the embassies and consulates of Country Group A:5 and A:6 destinations is consistent with U.S. national security and foreign policy interests. BIS decided to make this change after reviewing a question from the public that asked whether License Exception ENC could be used for an export that otherwise met the terms of License Exception ENC for an export to an embassy for the official use of a Country Group A:5 and A:6 destination. Prior to this final rule, paragraph (c)(2) of § 746.8 would have excluded the use of License Exception ENC by such government entities.

BIS estimates that these changes will result in a decrease of five license applications submitted to BIS annually.

2. Addition to exclusion in § 746.8(a)(12)(ii) for official business of diplomatic or consular missions of the governments of Country Group A:5 and A:6 destinations.

In § 746.8(a)(12)(ii) ( Mass market encryption commodities and software, and software designated EAR99), this final rule revises this paragraph to add a new exclusion under paragraph (a)(12)(ii)(F) to specify that exports, reexports, and transfers (in-country) for the official business of diplomatic or consular missions of the governments of Country Group A:5 and A:6 destinations that are operating in Russia or Belarus are also within the scope of this paragraph (a)(12) exclusion. This final rule also revises paragraph (a)(12)(ii)(D) to remove the word `or' and revises paragraph (a)(12)(E) to remove the period and add a semi-colon and the word `or' at the end of the paragraph to reflect the addition of new paragraph (a)(12)(ii)(F).

3. Addition of governments of Country Group A:5 and A:6 destinations to the case-by-case licensing policy under § 746.8(b)(3)(vi).

In § 746.8(b)(3)(vi), this final rule revises the case-by-case licensing policy for license applications submitted pursuant to paragraphs (a)(1), (2), and (4) through (8) of this section, to add a new paragraph (b)(3)(vi)(F). With this revision, the case-by-case license review policy to determine whether the transaction in question would benefit the Russian or Belarusian government or defense sector will also apply to applications involving items destined for official business of governments of Country Group A:5 and A:6 destinations that are operating in Russia or Belarus. This final rule also revises paragraph (b)(3)(vi)(D) to remove the word `or' and revises paragraph (b)(3)(vi)(E) to remove the period and add a semi-colon and the word `or' at the end of the paragraph to reflect the addition of new paragraph (b)(3)(vi)(F).

This final rule revises §§ 744.11 and 746.8 of the EAR to clarify that the three Entity List-related FDP rules' license requirements extend to or within any destination or to any end user or party. This final rule makes clarifying changes to § 744.11 by revising paragraphs (a)(2)(i) (Footnote 1 entities) and (a)(2)(iv) (Footnote 4 entities) to specify that parties may not, without a license, reexport, export from abroad, or transfer (in-country) to or within any destination or to any end user or party any foreign-produced item subject to the EAR pursuant to the referenced FDP rules under § 734.9(e)(1) or (2), respectively. Specifically, this final rule adds the phrase `to or within any destination or to any end user or party' to clarify the scope of this license requirement. This final rule makes the same clarifying revision in § 746.8(a)(3) (Russia/Belarus-Military End User and Procurement FDP rule) (Footnote 3 entities).

BIS estimates these changes described in section II.C will not result in any change to the number of license applications submitted to BIS annually.

For the changes being made in this final rule, shipments of items removed from eligibility for a License Exception or export, reexport, or transfer (in-country) without a license (NLR) as a result of this regulatory action that were en route aboard a carrier to a port of export, reexport, or transfer (in-country), on November 1, 2024, pursuant to actual orders for export, reexport, or transfer (in-country) to or within a foreign destination, may proceed to that destination under the previous eligibility for a License Exception or export, reexport, or transfer (in-country) without a license (NLR), provided the export, reexport, or transfer (in-country) is completed no later than on December 2, 2024.

On August 13, 2018, the President signed into law the John S. McCain National Defense Authorization Act for Fiscal Year 2019, which included the Export Control Reform Act of 2018 (ECRA) (codified, as amended, at 50 U.S.C. 4801-4852). ECRA provides the legal basis for BIS's principal authorities and serves as the authority under which BIS issues this rule. In particular, and as noted elsewhere, Section 1753 of ECRA (50 U.S.C. 4812) authorizes the regulation of exports, reexports, and transfers (in-country) of items subject to U.S. jurisdiction. Further, Section 1754(a)(1)-(16) of ECRA (50 U.S.C. 4813(a)(1)-(16)) authorizes, inter alia: (1) the establishment of a list of controlled items; (2) the prohibition of unauthorized exports, reexports, and transfers (in-country); (3) the requirement of licenses or other authorizations for exports, reexports, and transfers (in-country) of controlled items; (4) the apprising of the public of changes in policy, regulations, and procedures; and (5) any other action necessary to carry out ECRA that is not otherwise prohibited by law. Pursuant to Section 1762(a) of ECRA (50 U.S.C. 4821(a)), these changes can be imposed in a final rule without prior notice and comment.

1. BIS has examined the impact of this rule as required by Executive Orders (E.O.) 12866, 13563, and 14094, which direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits ( e.g., potential economic, environmental, public, health, and safety effects, distributive impacts, and equity). Pursuant to E.O. 12866, as amended, this final rule has not been determined to be a “significant regulatory action.”

2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq. ), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This rule involves the following OMB-approved collections of information subject to the PRA:

• 0694-0088, “Simple Network Application Process and Multipurpose Application Form,” which carries a burden hour estimate of 29.4 minutes for a manual or electronic submission;

• 0694-0096 “Five Year Records Retention Period,” which carries a burden hour estimate of less than 1 minute for a manual or electronic submission; and

• 0607-0152 “Automated Export System (AES) Program,” which carries a burden hour estimate of 3 minutes per electronic submission.

BIS estimates that these new controls on Russia and Belarus under the EAR will result in an increase of five license applications submitted annually to BIS. However, the additional burden falls within the existing estimates currently associated with these control numbers. Additional information regarding these collections of information—including all background materials—can be found at: https://www.reginfo.gov/public/do/PRAMain by using the search function to enter either the title of the collection or the OMB Control Number.

3. This rule does not contain policies with Federalism implications as that term is defined under E.O. 13132.

4. Pursuant to section 1762 of ECRA (50 U.S.C. 4821), this action is exempt from the Administrative Procedure Act (APA) (5 U.S.C. 553) requirements for notice of proposed rulemaking, opportunity for public participation, and delay in effective date. While section 1762 of ECRA provides sufficient authority for such an exemption, this action is also independently exempt from these APA requirements because it involves a military or foreign affairs function of the United States (5 U.S.C. 553(a)(1)).

5. Because neither the Administrative Procedure Act nor any other law requires that notice of proposed rulemaking and an opportunity for public comment be given for this rule, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) are not applicable. Accordingly, no Final Regulatory Flexibility Analysis is required, and none has been prepared.

Accordingly, parts 744 and 746 of the Export Administration Regulations (15 CFR parts 730 through 774) are revised to read as follows:

This document, the Notice of Proposed Rulemaking (NPRM), and all comments received may be viewed online through the Federal eRulemaking portal at www.regulations.gov using the docket number listed above. Electronic retrieval help and guidelines are also available at www.regulations.gov. An electronic copy of this document may also be downloaded from the Office of the Federal Register's website at www.FederalRegister.gov and the U.S. Government Publishing Office's website at www.GovInfo.gov.

The principal mission of DOT is to ensure America has the safest, most efficient, and modern transportation system in the world. This system boosts our economic productivity and global competitiveness and enhances the quality of life in communities both rural and urban. We depend on transportation for access to jobs, to enable us to conduct our business, to supply us with services and goods, and to facilitate our leisure and recreational activities. The Department's mission is accomplished through strategic goals pertaining to safety, economic strength and global competitiveness, equity, climate and sustainability, transformation, and organizational excellence.

An efficient and well-maintained roadway network is a critical component of our overall transportation system. Our roadway network must be continuously monitored and repaired to keep it functioning. Periodically, roadways must also be rehabilitated, reconstructed, or otherwise improved. Work zones are a necessary part of maintaining and upgrading our aging roadway infrastructure. The FHWA strongly encourages that work zones be implemented and maintained as safely as possible, and with the least possible amount of travel disruption. Doing so directly supports DOT's safety strategic goal, facilitates the movement of people and goods while work occurs on our highways, and is essential for maintaining economic strength and global competitiveness. Similarly, effective work zone management also ensures that work zone impacts do not unduly burden any one user group, and that appropriate efforts are taken to mitigate the differential impacts caused by work zones. Congestion generated by work zones contributes to vehicular pollution; reducing congestion undoubtedly supports DOT goals pertaining to climate and sustainability. Continuous development and support of new technologies, strategies, and uses of new sources of data for work zone management relate directly to the Department's transformation and organizational excellence goals.

Over the last two decades, significant strides have been made in managing work zone safety and mobility, with States establishing overarching work zone safety and mobility policies and implementing processes to better understand and manage work zone impacts ( e.g., implementing processes for significant projects, applying intelligent technologies for work zone operations, measuring work zone performance). However, opportunities still exist to improve the consistency and continuity of work zone management practices across States, including proactively monitoring and managing work zone impacts of projects during implementation and leveraging available data sources for data-driven work zone performance reviews. Work zones continue to have significant safety and mobility impacts on our transportation system, which are further expected to increase due to increased road construction and rehabilitation projects funded by the Bipartisan Infrastructure Law (BIL). Further, Congress, through the BIL, required FHWA to update the process review and significant projects sections.

In light of the above, FHWA published an NPRM on September 20, 2023, at 88 FR 64836, to update Subpart J to meet current and future work zone management needs while also making the subpart compliant with the BIL. The key changes proposed in the NPRM included: incorporating safety and mobility performance measures in States' work zone policies; increasing the reporting interval for work zone process reviews from 2 to 5 years (as per the BIL) and reframing process reviews to programmatic reviews; clarifying certain unclear terms; and clarifying the significant projects and associated Transportation Management Plan (TMP) criteria for Interstate and non-Interstate projects (as per the BIL).

Several States, a few trade associations, and some private industry representatives provided responses to the NPRM. Most State department of transportation (State DOT) commenters agreed with the intent and concepts proposed in the NPRM but they recommended revisions to minimize regulatory burden, increase flexibility and scalability, and make the provisions more practical to apply in the field. States also noted that some of the terms used in the proposed rule were ambiguous and lent themselves to subjective interpretation, and asked for clarification on the compliance dates. In this final rule, FHWA has addressed the comments received in response to the NPRM that are within the scope of this rulemaking. The regulation addresses the comments related to flexibility and scalability of provisions; revises, eliminates, or clarifies ambiguous terms pointed out by the commenters; and clarifies compliance timeframes.

The final rule revises §§ 630.1004, 630.1006, 630.1008, 630.1010, 630.1012, 630.1014, and 630.1016 of the existing rule published in 2004 to clarify certain aspects of the regulation and to update and provide additional emphasis on certain elements. The regulation will enhance the current state of practice in work zone management by promoting data-driven assessment of work zone performance, motivating agencies to conduct a thorough review of work zone management processes, and encouraging comprehensive assessment and management of work zone safety and mobility impacts. This final rule incorporates new definitions and clarifies some existing definitions; includes a requirement in States' Work Zone Safety and Mobility Policies to define the safety and mobility performance measures that States will monitor and report; reframes Work Zone Process Reviews to Work Zone Programmatic Reviews (WZPR), emphasizing the importance of reviewing all aspects of a State's work zone management program; changes the WZPR reporting timeframe from every 2 years to every 5 years to comply with the BIL; strengthens the requirement for States to develop and implement work zone assessment and management procedures with an added notion of addressing impacts to all anticipated road users and highway workers; and clarifies the significant project and TMP criteria for Interstate and Non-Interstate projects to comply with the BIL.

In 2007, at 72 FR 68489, FHWA added a new Subpart K to 23 Code of Federal Regulations (CFR) part 630 to facilitate the appropriate use of, and expenditure of funds for, uniformed law enforcement officers, positive protective measures between workers and motorized traffic, and installation and maintenance of temporary traffic control devices during construction, utility, and maintenance operations. The intent of the regulation was to reduce both worker and motorist fatalities and injuries in work zones. Overall, work zone fatalities decreased significantly during the latter half of that decade, from a high of 1,068 work zone fatalities in 2004 to 590 fatalities in 2011. 1 Unfortunately, since then that trend has reversed, growing from 590 fatalities in 2011 to 891 fatalities in 2022 (the most recent year of available national work zone fatality data). Work zones continue to have significant safety and mobility impacts on our transportation system, which are further expected to increase due to increased road construction and rehabilitation projects funded by the BIL.

Vehicle collisions with highway workers as a percentage of all highway worker fatalities have also been trending upward in recent years. In 2015, 35 percent of all highway worker fatalities at road construction sites were caused by a vehicle striking a worker; by 2020, that number has increased to 53 percent. 2 3

It has been over 15 years since the Subpart K rule was first published. New technologies, such as work zone intelligent transportation systems (also referred to as smart work zones) and automated flagger assistance devices (AFAD), have become dependable tools that are now readily available to help mitigate the safety and mobility impacts of work zones and should be listed as options to consider within the regulation. Other advanced technologies to support connected and automated vehicle travel through and around work zones continue to be developed and deployed. Conversely, despite sufficient time to develop appropriate procedures to do so, adoption of the requirement to base decisions regarding the need for longitudinal traffic barriers and other positive protection devices on an “engineering study” have been uneven across the States. A need exists to strengthen the rule with regard to what constitutes an engineering study. Finally, the existing regulation references guidelines and other documents that have been superseded by newer publications.

In light of the above, FHWA published an NPRM on September 20, 2023, at 88 FR 64836, to update Subpart K to meet current and future work zone safety needs. The regulations proposed in the NPRM were intended to facilitate improved agency guidelines backed by engineering research to determine the use of positive protection and other strategies. In addition, the proposed regulations mandated the use of positive protective strategies to minimize worker exposure to motorized traffic in work zones with high anticipated operating speeds that provide workers no means of escape from motorized traffic intruding into the workspace. Several States, a few trade associations, and some private industry representatives provided responses to the NPRM. While most of the commenters agreed with the intent and the concepts proposed in the NPRM, they recommended that the proposed provisions be revised and altered to make them practical for application in the field. The commenters identified the need for flexibility and scalability in the implementation of the provisions of the proposed rule; noted that some of the terms used in the proposed rule were ambiguous and lent themselves to subjective interpretation; and asked for clarification on compliance timeframes of the final rule. In this final rule, FHWA has addressed the comments received in response to the NPRM that are within the scope of this rulemaking. The regulation addressed the comments related to flexibility and scalability of provisions; revised, eliminated, or clarified ambiguous terms pointed out by the commenters; and clarified compliance timeframes.

The final rule revises §§ 630.1104, 630.1106, 630.1108, and 630.1110 of the existing rule published in 2007 to clarify certain aspects of the regulation and to update and provide additional emphasis to certain elements that have not seen the quality of implementation that was initially envisioned. The final rule also adds § 630.1112 to the existing rule to clarify the compliance timeframe. The final rule incorporates new definitions and clarifies some existing definitions; updates the requirement in States' Work Zone Safety Management Policies and Procedures to clarify that agency processes, procedures, or guidance regarding strategies and devices to be used for the management of work zone impacts, including the use of positive protection devices and other strategies, are to be based on an engineering study; updates the requirement in States' Work Zone Safety Management Policies and Procedures to provide characteristics of an engineering study and examples of the types of engineering decisionmaking tools that can be used in the engineering study; and modifies § 630.1108(a) to: (i) require that positive protection devices be used in work zones with high anticipated operating speeds that provide workers no means of escape from motorized traffic intruding into the workspace unless an engineering study determines otherwise; and (ii) remove redundant language indicating that decisions regarding the use of longitudinal traffic barriers and other positive protection devices shall be based on an engineering study.

A total of 53 parties commented on the NPRM. Of these, 35 were from State DOTs, 12 were from trade associations, 3 were from private companies, and 3 were from private citizens. Representatives from 20 State DOTs provided 35 responses. The 20 States represented a diverse range of geographies from across the country. The DOTs of Idaho, South Dakota, North Dakota, Wyoming, and Montana provided a consolidated response to the NPRM, while the remaining State DOTs submitted individual comments. The trade associations that provided comments included the Laborers' Health and Safety Fund of North America (LHSFNA), American Traffic Safety Services Association (ATSSA), Associated General Contractors of America (AGC), American Society of Civil Engineers (ASCE), American Road and Transportation Builders Association (ARTBA), Motorcycle Industry Council (MIC), American Federation of State, County, and Municipal Employees (AFSCME), International Safety Equipment Association (ISEA), and Institute of Transportation Engineers (ITE).

The commenters represented a cross-section of job categories across DOT functions including planning, engineering, traffic, safety, design, construction and contracting.

Most commenters were generally supportive of the intent and stated purpose of the proposed revisions. Some commenters offered additional comments on specific areas of concern and recommended changes to improve the rule's language and interpretability.

Generally, State DOTs commented that the proposed revisions should not have a mandatory impact, but instead allow for flexibility and scalability while limiting unintended liability and cost. Five States agreed with FHWA's intent and the concepts for improving work zone safety and mobility but did not agree with many of the mandatory provisions. States also sought clarification on whether FHWA intended to mandate the performance measures listed in some of the “shall” conditions or whether the measures were provided as examples. In addition, States asked for clarification on certain ambiguous terms as well as the compliance timeframe for the final rule.

Most State DOT commenters appreciated the updated 5-year reporting timeframe for WZPRs but had concerns about the new 3-year performance reporting requirement. They commented that the 3-year requirement contradicts BIL § 11302 and would require significant commitments from its limited staff. In addition, they sought clarification on the flexibility for States to choose the number of performance measures and specific measures to meet final rule requirements.

Private sector commenters also offered comments on certain areas of concern. Details regarding these issues and FHWA's specific response are discussed in the following section, which provides a section-by-section analysis of the comments.

This section consists of a detailed discussion on the comments received on specific NPRM sections and the FHWA response and resolution to the comments. For each section, the following information is presented:

• Breakdown of the position of the commenters with regards to the provisions proposed in that section;

• Major issues cited by the commenters; and

• FHWA action in response to the comments and explanation of the provisions being implemented in the final rule.

The following paragraphs present a section-by-section analysis and resolution of the comments on the NPRM.

Most commenters were supportive of this section. Some commenters offered specific comments on some of the definitions proposed in the NPRM. They are discussed as follows:

A commenter pointed out that the term “agency” only appears in the definitions of “Highway Workers,” “Transportation Management Plan,” and “Work Zone Programmatic Review.” The commenter mentioned that all remaining sections refer to “States” and have no actionable items for agencies. The commenter sought clarification on the intent of using the term “agency” and any final rule provisions or action items applicable to local highway agencies or authorities.

The FHWA will retain the “Agency” definition as proposed in the NPRM and add clarification in § 630.1010 that provisions in §§ 630.1010, 630.1012, and 630.1014 apply to State and local agencies that receive Federal funding for their work zone projects. The FHWA updated the definition of “Agency” by adding, “that receives Federal-aid highway funding” at the end to be consistent with the Subpart K definition.

Four commenters provided input on this definition, with three commenters opposed to the deletion of language associated with highway worker or road user safety and one being neutral. The three commenters suggesting that the language associated with the safety of highway workers and road users should not be deleted believe that keeping the language intact would help emphasize the fact that safety is a crucial aspect that underpins the movement of road users. Another commenter suggested adding `level of service' as an example of commonly used performance measures.

As requested by the commenters, FHWA will retain the safety language related to highway workers and road users in the mobility definition. The FHWA did not add `level of service' as an example measure because it is a metric that can be derived from the other example metrics included in the provision.

While FHWA did not propose a definition for “Road User” in the NPRM, one commenter asked FHWA to clarify the term in relation to the use of this term in § 630.1008(b).

The FHWA declines to add a new definition here but notes that the definition for the term “Road Users” is provided in 23 United States Code (U.S.C.) 148(a)(8).

Ten commenters supported the removal of superfluous language on highway worker safety. Four of the commenters suggested removing “the rate of highway worker fatalities and injuries per hours of work activity” from commonly used measures. They suggested this removal due to the difficulty of obtaining accurate information for these measures.

The FHWA understands the difficulty cited by commenters in collecting accurate hours of work activity and numbers of highway worker fatalities and injuries. To this end, FHWA removed “the rate of highway worker fatalities and injuries per hours of work activity” from the commonly used measures.

Five commenters pointed out that the section-by-section discussion of §  630.1004 in the NPRM inaccurately stated that the TMP definition includes references to the temporary traffic control (TTC) plan and transportation operations (TO) and public information and outreach (PIO) components to the TMP.

The FHWA agrees with the commenters' observation that the TMP definition does not provide information about the TTC, TO, and PIO components. Sections 630.1010(d) and 630.1012(b) provide a detailed explanation of these TMP components. The FHWA added a clarifying sentence at the end of the TMP definition that readers can refer to § 630.1010(d) and § 630.1012(b) for more information on the TMP and its components.

Three commenters supported the proposed changes. Two commenters asked FHWA to compare the proposed work zone crash definition with the Model Minimum Uniform Crash Criteria (MMUCC) definition of secondary crashes. 4 The MMUCC says that secondary crashes are identified from the time the initial crash is detected, occurring either at the primary crash site or within the traffic queue or backup, including those in the opposite direction caused by the primary crash. A commenter recommended providing additional clarification that the crash tracking requirement is not intended to capture any crash within the area of impact, and only specifically work-zone-related crashes per the MMUCC.

The FHWA did not make any changes to the proposed NPRM language. The existing “Work Zone Crash” definition in § 630.1004 refers to the crash definition in MMUCC, which also addresses secondary crashes outside the work zone limits influenced by the primary work zone crashes. The FHWA encourages States to include secondary work zone crashes in their safety analysis to the extent data are available.

Two commenters supported the proposed changes. One commenter recommended adding “Type of Temporary Traffic Control” to the list of factors for assessing the work zone impacts and extent. Another commenter asked for clarification on whether States need to use minimum parameters or engineering judgement to assess “distance between workers and traffic and availability of escape paths for workers” factors.

The FHWA updated the rule language by adding type of temporary traffic control as a factor that States can consider for assessing the extent of work zone impacts. In addition, FHWA clarifies that States can (i) use data from work zone planning and implementation logs to identify “the distance between workers and traffic” and (ii) a combination of data ( e.g., work zone type, location, closure status) and engineering judgement to assess “the availability of escape paths for workers.” Workers in this instance refers to flaggers and highways workers.

Twenty-one commenters provided comments in response to this paragraph. Of these, 12 commenters expressed concerns about the inclusion of a list of safety and mobility performance measures within the “shall” condition of the work zone policy requirement. They believe that it gives the impression that FHWA mandates the use of these performance measures. The commenters sought clarity on whether FHWA mandates the use of these measures or whether they are just examples. They also asked whether they can choose performance measures not listed in this paragraph and whether there is a minimum number of safety and mobility performance measures that each State should identify to meet this requirement. A commenter noted that the Manual on Uniform Traffic Control Devises (MUTCD) uses American National Standards Institute/ISEA (ANSI/ISEA) 107-2015 standard for compliance requirements of high-visibility safety apparel for all workers performing daytime and nighttime work activity within temporary traffic control zone. The commenter suggested adding a new paragraph to recognize the new ANSI/ISEA 107-2020, the American National Standard for High Visibility Safety Apparel.

The safety and mobility performance measures included in the NPRM are examples and are not mandatory. To avoid confusion, FHWA split the proposed sentence into two. The revised first sentence contains the requirement for States to identify performance measures in their work zone policies. The second sentence provides examples of measures to consider. States can comply with this requirement by identifying at least one safety and one mobility performance measure, but they are encouraged to use as many performance measures as needed to manage the performance of their work zones. States may choose performance measures that are best suited to their work zone conditions and impacts but they must have a documented work zone performance management approach for selecting projects, identifying performance measures, and collecting performance data. In response to the suggestion to add a new paragraph regarding ANSI/ISEA 107-2020, Subpart J incorporates the MUTCD and requires the use of Part 6 by reference. Section 6C.05 of the MUTCD requires all workers performing daytime and nighttime work activity within temporary traffic control zones to wear high-visibility safety apparel that meets the Performance Class 2 or 3 requirements of the ANSI/ISEA 107-2015 standard or equivalent revisions.

Eight commenters provided input on this paragraph. Note that FHWA did not propose any changes to existing language related to the multi-disciplinary team. The only change that FHWA made to this paragraph was to assign a paragraph number, “(c),” to this sentence. Six commenters suggested removing this paragraph to allow States flexibility for selecting members for the multidisciplinary team. Two commenters sought clarification on whether States can keep this team internal and involve external parties only if necessary. Another commenter commented that the language in § 630.1006(c) is redundant with § 630.1008(e)(5).

The FHWA disagrees with the suggestion of deleting this paragraph and retained the language as proposed in the NPRM. The intent of the “should” condition is to encourage States to include members from various work zone management divisions in their policy development and implementation in a comprehensive manner. States can determine the members of their multidisciplinary team based on their needs. The team and developed policies can remain internal to the States, but external members can be added if deemed necessary. While § 630.1006(c) addresses the members that participate in the development and implementation of the work zone safety and mobility policy, § 630.1008(e)(5) addresses the members that participate in the work zone programmatic review.

Ten commenters provided comments on this paragraph. Among these, seven commenters suggested to retain the previous “should” condition for this requirement instead of elevating to a “shall.” These commenters also believed that the term “potential” in “potential work zone impacts” could be construed as requiring analysis for outcomes that may be unlikely but are nonetheless “potential” impacts. They recommended replacing the term “potential” with “likely” or “possible” so that the implementation of this requirement can be more practical. A commenter expressed concern with the use of term “all” in “all road users and highway workers” as some road users ( e.g., pedestrians and bicyclists) might not be applicable when assessing impacts on certain work zones. The commenter suggested removing the term “all” or qualifying with a caveat such as “all anticipated road users.” Another commenter recommended adding “(including motorcyclists)” next to road users.

The FHWA disagrees with the commenters' suggestion to retain the “should” condition instead of “shall” condition. The Work Zone Assessment and Management Procedures provision was introduced in 2007 as a new concept, hence the use of “should” was appropriate at that time. Since then, States have made significant progress in their work zone impacts assessment and management procedures. Therefore, using “shall” will reinforce this progress and facilitate continued improvement in work zone safety and mobility nationwide. The FHWA made additional changes for clarity and to address the issues cited by the commenters.

Thirteen commenters provided comments on this paragraph. Of these, eight commenters suggested changing the “shall” condition for this requirement to a “should.” These States noted that the term “available” is missing in front of safety surrogate data. Some commenters asked FHWA to clarify its intent in using the term “available” in front of multiple data sources. They commented that some data sources might be available in the market but not accessible for States to use due to factors such as required subscriptions and funding. In addition, five commenters sought clarity on whether FHWA mandates the use of performance measures listed in this paragraph or whether they are just examples. Two other commenters asked for clarity on the term “specific projects” and if it is the same as significant projects defined in § 630.1010.

The existing rule already requires States to use data in their work zone safety and mobility management processes. The FHWA retained the “shall” condition to facilitate improved data-driven assessments of work zone performance nationwide. To address the comment about performance measures, FHWA split the paragraph into two sentences in the final rule. The revised first sentence presents the requirement, and the second sentence identifies example measures for each data source. The FHWA's intent in using the term “available” in this paragraph is not to require States to acquire additional data available in the market, but rather to make use of data accessible and available to them through existing sources. “Specific projects” in this paragraph refers to individual projects that State DOTs choose for monitoring and management of work zone impacts during implementation. Specific projects may include significant or non-significant projects, and are selected based on factors such as land use, type of roadway, work zone type, and the extent of potential work zone impacts.

Three commenters provided comments on this paragraph. Note that FHWA did not propose any changes to existing language for this paragraph. The commenters did not cite any major issues. One commenter asked about training and certification requirements pursuant to § 630.1008(d). Another commenter recommended that State and local roadway owners should require a trained and certified Work Zone Supervisor to be assigned for each significant project. The third commenter recommended to update the paragraph language by adding an established time period that informs workers when they should recertify their training to ensure workers are thoroughly trained in the best safety practices when working in work zones.

The FHWA did not make any changes to this provision. With regard to the commenter's question on training and certification requirements, FHWA's position is that State DOTs need to tailor training and certification for each role based on their own requirements. For example, Virginia DOT's Work Zone Traffic Control Training Requirements document  5 identifies various roles in design, construction, and maintenance/operations divisions and their respective training and certification requirements. The current state of the practice is that most agencies require their staff to be retrained once every 2 to 4 years. With regard to the comment on retraining, FHWA believes that the second sentence in this provision ( i.e., States shall require periodic training updates that reflect changing industry practices and State processes and procedures) addresses the comment by requiring periodic training updates that reflect changing industry practices, which includes state-of-the-art practices.

Eleven commenters provided input on this paragraph. All commenters were supportive of this high-level provision. Note that § 630.1008(e) speaks about the high-level provision for work zone programmatic reviews and its reporting timeframe, whereas paragraphs § 630.1008(e)(1) through (e)(5) provide more specifics on the contents of the work zone programmatic reviews, project selection for conducting reviews, data-driven assessment needs, and examination of various work zone efforts. Commenters provided separate comments on these individual paragraphs, which are discussed following this section. Six commenters asked for clarification for the timeframe of the data to be included in the 5-year programmatic review. They noted a technical concern in the wording that calls for a State to share its 5-year review with FHWA “by the end of the 5-year review period.” They suggested that the review period for each WZPR report should include the review of work zones from 5 calendar years prior to the year of the report. Commenters also asked for clarification on the compliance dates for the reframed WZPR requirement. They mentioned that it may take at least 12 to 24 months to update their policies and data collection practices to meet the new requirements. They asked FHWA to consider these factors when identifying the compliance dates/timeframes. A commenter recommended application of data driven assessments to a representative sample of work zone projects over the 5-year review period that justify their inclusion.

The FHWA finds the approach suggested by the State DOTs for Programmatic Reviews' review period ( i.e., the review period for each WZPR report includes selection and review of work zones from 5 calendar years prior to the year of the report) to be reasonable. States may use this approach for selecting the review period for their Programmatic Reviews. The FHWA addressed comments about compliance timeframes in § 630.1016 by indicating that the next Programmatic Review reports are due by December 31, 2030. The FHWA reemphasizes that States shall use a documented approach for selecting representative projects based on factors such as land use (urban and rural locations), roadway type, type of work zone, and extent of the work zone impacts.

Six commenters provided comments on this paragraph. Of these, two commenters suggested changing the requirement from “shall” to “should” and indicated that this change will allow flexibility to States in selection of projects for WZPRs. These two commenters along with four other commenters noted a major concern with the use of term “all” in “all work zones” and indicated that this implies that States shall include all their work zones in their WZPRs. They indicated that the term “all” is particularly concerning in rural areas where there are very few projects that qualify as “significant.” These commenters suggested removing the term “all” from the regulation. Another commenter asked whether States are required to negotiate and confirm the representative project selection approach with the FHWA division offices.

The FHWA retained the “shall” condition and addressed the concern raised by multiple commenters by removing the term “all” from the final rule language. To avoid confusion, FHWA split the first sentence into two sentences. The revised first sentence addresses the data-driven assessment requirement of WZPRs, and the second sentence presents the minimum Programmatic Review requirement to include a representative sample of the State's work zones over the 5-year period being reviewed. This revision provides flexibility to State DOTs to select a representative set of projects based on a documented and well-reasoned approach. To the extent possible, FHWA encourages States to include all work zones in their programmatic review to make it a comprehensive review of systemwide performance. While States are not required to include FHWA division offices in defining the approach for representative project selection, they are encouraged to do so.

Two commenters provided input on this paragraph. One commenter suggested changing the requirement from “shall” to “should” to minimize regulatory burden on States. Another commenter commented that the terms “divisions or offices” used in this paragraph are not clearly defined.

The FHWA retained the “shall” condition in the final rule to ensure uniform implementation and reporting of WZPRs across the country. To make it clear that Programmatic Reviews should identify State divisions and offices responsible for implementing action items, FHWA added the term “State” in front of “divisions or offices.”

Nine commenters provided comments on this paragraph and opposed the provisions in it. A commenter suggested changing the requirement from “shall” to “should” to minimize regulatory burden on States. Eight commenters indicated that the requirement to report performance at the end of the third year might be contradictory to the BIL. Commenters noted inconsistent use of the term “available” in front of data sources. A commenter asked for clarification on contents to be included in the 3-year report. Another commenter suggested consistency in use of example measures listed in § 630.1008(e)(3) and § 630.1008(c). In addition, five commenters sought clarity on whether FHWA mandates the use of performance measures listed in this paragraph or whether they are just examples.

The FHWA removed the mid-point performance data reporting from the rule provision to address the comments received. The FHWA retained the annual performance monitoring requirement. The purpose of the annual monitoring is to facilitate continuity in assessing work zone performance. States are encouraged to use the performance measures they identify in their policies for the annual monitoring and incorporate their findings into their 5-year WZPRs. The FHWA added the term “available” in front of all data sources to make it consistent. The FHWA removed the performance measures proposed in the § 630.1008(e)(3) of NPRM and added a sentence noting that agencies can use examples of performance measures listed in § 630.1008(c) for each data source.

Seven commenters provided comments on this paragraph. Of these, two commenters suggested changing the requirement from “shall” to “should” to minimize regulatory burden on States. Four commenters opposed the use of the term “all” in “all State divisions and offices,” and noted that the selection of applicable divisions or efforts to be examined as part of WZPRs varies between States depending on factors such as staff and data availability in those divisions. They asked whether the efforts listed in the requirement are examples or requirements, and if States have flexibility in selection of these efforts based on their work zone assessment criteria.

The FHWA retained the “shall” condition in the final rule to emphasize the importance of covering all aspects of program planning and project development that affect work zone safety and mobility. The FHWA removed the term “all” in front of “State divisions or offices” to allow States flexibility to select efforts applicable to their work zone safety and mobility assessment. The FHWA further clarifies that the efforts listed in § 630.1008(e)(4) apply to work zone processes and procedures requirements between § 630.1008(e)(2) and § 630.1008(e)(4). The FHWA's intent is for States to select the efforts considering the assessment of the work zone safety and mobility performance. The FHWA encourages States to involve FHWA division offices in selecting efforts, but it is not mandatory.

Only one commenter provided comments in response to this paragraph. Note that FHWA did not propose any changes to existing language for this paragraph. This commenter suggested adding the words “work zone” in between significant projects to distinguish work zone projects from other types of projects that may have different impacts and requirements.

The FHWA did not propose any changes to this provision in the NPRM. Therefore, FHWA did not make any change to the final rule. With regards to the one comment on this topic, the significant project definition addresses sustained work zone impacts, and it is implied that these projects are work zone projects.

Four commenters provided comments on this paragraph. Note that FHWA did not propose any changes to existing language for this paragraph. Three of the commenters recommended deleting this paragraph, noting that States have a defined policy under § 630.1010(a) for determining significant projects. Two commenters asked FHWA to consider providing flexibility for intermittent closures associated with preservation and maintenance activities with lower/mitigated impacts on the interstate system. Another commenter mentioned that the BIL language about significant projects does not include intermittent lane closures.

In compliance with BIL § 11303(a), FHWA retained the language as proposed in the NPRM. Although States define their policy under § 630.1010(a), work zones on interstates that meet the conditions of § 630.1010(c) would still qualify as significant projects. This section identifies minimum criteria for significant projects. If a State determines a project or a class of projects as not significant, they can make use of the State DOT policy in § 630.1010(b) and exception process in § 630.1010(d) to file an exception and not prepare the PIO and TO components of a TMP. The BIL § 11303(a) mentions that “The Secretary shall amend section 630.1010(c) of title 23, Code of Federal Regulations, to ensure that only a project described in that paragraph with a lane closure for 3 or more consecutive days shall be considered to be a significant project for purposes of that section.” The projects described in paragraph § 630.1010(c) include work zone projects with intermittent or continuous lane closures.

Three commenters provided comments on this paragraph. All of them recommend deleting this paragraph, noting that TMP requirements are covered in § 630.1012(b).

The FHWA retained this paragraph because it is required for compliance with BIL § 11303(b) and to address TO/PIO requirements for non-interstate projects. However, FHWA modified this paragraph to simplify the language and make it consistent with the interstate system projects requirement. The FHWA also changed the numbering for this section § 630.1010(d) in the NPRM to § 630.1010(e). This change allows the significant project exceptions for interstate projects ( i.e., previously § 630.1012(e) in the NPRM) to be next to the significant project qualification section ( i.e., § 630.1012(c)).

One commenter provided comments on this paragraph. Note that FHWA did not propose any changes to this paragraph. The commenter requested clarity on the process and time frame to request and receive an exception from FHWA.

Since there was no change proposed in the NPRM, FHWA did not make any changes to this paragraph in the final rule. With regards to the commenter's requested clarification on the process and time frame for exceptions, States are encouraged to coordinate with FHWA division offices on how to handle exceptions either on a project-by-project basis or for a particular project category, in order to streamline and simplify the process.

Five commenters provided comments in response to the NPRM preamble language of this paragraph. Note that FHWA did not propose any changes to existing language for this paragraph in the NPRM. A commenter asked FHWA to clarify which agencies would be responsible for developing TMPs for projects outside the State DOT's jurisdiction. Further, the commenter mentioned that the State should not be required to develop and implement TMPs for such projects and manage their impacts. The section-by-section discussion of the NPRM's § 630.1004 talks about updating the public information component to PIO in the TMP definition. However, the TMP definition does not cover the TO and PIO components of a TMP. All five commenters pointed out that the preamble discussion on expanding public information to PIO is more appropriate in the section-by-section discussion of § 630.1012(b) as that section explains about PIO.

The FHWA decided to remove the requirement that TTC plans are consistent with the work zone hardware recommendations in Chapter 9 of the 2011 American Association of State Highway and Transportation Officials (AASHTO) Roadway Design Guide (RDG), which had been proposed for incorporation by reference in the NPRM. The 4th edition of the RDG includes some statements that are no longer accurate ( e.g., reference to FHWA's approval of crashworthy products by issuing acceptance letters). Despite this change in mandatory requirement, agencies are encouraged to consider the work zone hardware recommendations in the AASHTO RDG when preparing their TTC plan. This RDG document was developed by AASHTO to present the concepts of roadside safety (including those in work zones) to designers so that the most practical, appropriate, and beneficial roadside design can be accomplished for each project.

The FHWA clarifies that the provisions in §§ 630.1010, 630.1012, and 630.1014 apply to all State and local agencies that receive Federal funding for their work zone projects. An agency (State or local) that receives Federal funds for their work zone projects is responsible for developing and implementing TMPs and managing impacts of those projects. The FHWA agrees with the commenters and clarifies that the description of a public information component in § 630.1010(d) and § 630.1012(b) has been expanded to PIO to be consistent with the intent of that aspect of the TMP.

The rulemaking to adopt the 11th edition of MUTCD was in progress when FHWA published the NPRM for this rule. In December 2023, FHWA published the new version of MUTCD. Since § 630.1012(b) refers to MUTCD Part 6, FHWA updated the MUTCD reference in § 630.1018 to reflect the new version.

Two commenters provided comments on this paragraph. Both suggested removing the “shall” condition from this paragraph and noted that including TMP into Plans, Specification, and Estimates will require additional policy and process development, training, and legal review.

The FHWA did not make any change to this paragraph in the final rule. The “shall” condition has been in place since the initial Work Zone Safety and Mobility Rule published in 2004 and does not introduce any new requirements.

Only one commenter provided comments in response to this paragraph. The FHWA did not propose any changes to this paragraph in the NPRM. The commenter inquired if the trained person referred to in this paragraph must meet any ATSSA certification requirements.

The FHWA did not make any changes to this paragraph. With regards to the commenter's question, FHWA does not establish specific training and certification requirements, as each agency determines its own.

Eleven commenters provided comments in response to this paragraph. Of these, ten commenters asked questions about the compliance date for the provision and the timeframe for the mid-point performance summary and WZPR reporting. Commenters asked for the effective date to be a minimum of 12 months from the date of final rule publication.

The FHWA changed the compliance date to December 31, 2026, which allows at least 24 months for States to comply with the rule. The next WZPR reporting date will be December 31, 2030, respectively. In addition, FHWA removed the phrase “and once every 5 years thereafter” as it is already covered in § 630.1008(e).

Commenters were generally supportive of the intent and purpose of the updates to Subpart K and acknowledged the importance of work zone safety, and specifically, worker safety. The commenters offered comments on specific areas of concern and recommended changes to improve the rule's language. State DOTs expressed concern that the rule should not mandate provisions but rather it should allow for adequate flexibility and scalability while limiting unintended liability and cost. States also sought clarification of certain ambiguous terms and the compliance timeframe. Private sector commenters also offered comments on certain areas of concern. Details regarding these issues and FHWA's specific responses are discussed in the following section, which provides a section-by-section analysis of the comments.

The majority of commenters expressed overall support for the provisions proposed in the NPRM. While the commenters' overall position on the NPRM was supportive, many of these commenters suggested modifications and revised language for specific provisions as they deemed appropriate.

Of the six commenters who did not expressly support the updates, five of them agreed with FHWA's intent and the concepts for improving work zone safety and worker protection, but did not agree with the mandatory provisions. They opposed the change proposed in § 630.1108(a) to require positive protection devices in specific conditions unless an engineering study concludes otherwise. To this end, they mentioned the specific work zone conditions where these requirements would not be practically applicable, and the additional investments associated with implementing these strategies. They suggested additional changes to specific sections and removal of ambiguous terms. They also sought clarification on the compliance timeframe for the final rule. The remaining commenter opposed the provision for development of broader guidelines based on an engineering study that agencies can use for determining the requirement of positive protection or other strategies, and also opposed adding the “high anticipated operating speeds” qualifier in the provision (§ 630.1108(a)) that addresses the positive protection requirement.

Most commenters were supportive of this section. Some commenters offered specific comments on some of the definitions proposed in the NPRM. They are discussed as follows:

Eight commenters provided input on this definition. All eight commenters stated that the term “comprehensive” in “comprehensive analysis and evaluation of available pertinent information . . .” is unclear. They recommended deleting this term to be consistent with the definition of Engineering Study from the recently published MUTCD 11th edition. A commenter suggested adding the term “temporary” in front of “traffic control.”

Keeping consistency with the MUTCD definition, FHWA deleted the term “comprehensive” from this definition. The term “traffic control” is used in a broad sense here. As the definition of “Engineering Study” applies to the entire Subpart K, which provides guidance on how to approach strategies related to all work-zone-related temporary traffic control, FHWA did not add “temporary” before “traffic control” in this definition.

Four commenters provided input on this paragraph. Three commenters opposed removing the crashworthiness qualifier requirements from the definition of positive protection devices. They mentioned that the crashworthiness requirements ensure that the various positive protection mechanisms used are tested for their appropriateness to offer the necessary protections at relevant speeds. The remaining commenter asked for a more detailed definition of positive protection devices, including example devices that constitute a positive protection device.

The FHWA updated the definition language to include that the positive protection devices meet applicable industry crashworthiness evaluation criteria. For example, AASHTO's Manual for Assessing Safety Hardware includes current industry crashworthiness evaluation criteria. Industry crashworthiness evaluation criteria are not regulatory, and use of them is voluntary and not required by law. This updated language reemphasizes FHWA's longstanding policy that all roadside safety hardware installed on the National Highway System be crashworthy. States can refer to 23 U.S.C. 112(g)(4) for examples of positive protection devices, which include temporary traffic barriers, crash cushions, and other strategies to avoid traffic crashes in work zones, including full road closures.

Eight commenters provided input on this section. Three of the commenters opposed the requirement that agency processes, procedures, or guidance regarding strategies and devices to be used for the management of work zone impacts, including the use of positive protection devices and other strategies, are to be based on an engineering study. The remaining commenter suggested requiring that State DOTs conduct a project-specific engineering study instead of using agency guidelines based on an engineering study.

The FHWA decided to remove the reference to the AASHTO RDG. The 4th edition of the RDG includes some statements that are no longer accurate ( e.g., reference to FHWA's approval of crashworthy products by issuing acceptance letters). Despite this change, agencies are encouraged to consider work zone related information in the AASHTO RDG during the development of their processes, procedures, and guidance. The FHWA reemphasizes that agencies need to use reasonable and well-documented approaches backed by engineering research to develop their processes, procedures, or guidance for managing work zone impacts, including using positive protection devices and other strategies. Such well-documented approaches can provide evidence-based justification for agencies to determine the need for positive protection and other strategies to ensure worker safety.

A commenter suggested moving the detailed discussion of engineering study from this paragraph to the “engineering study” definition in § 630.1104.

The definitions section offers a broader definition of engineering study. In contrast, this section provides more in-depth details of who conducts the study, how to document it, and applicable tools to perform it. Therefore, FHWA believes the details of the engineering study are more applicable to this section.

Another commenter asked for a clear definition of the terms “safety impacts” used in § 630.1106 (b)(3) “anticipated traffic safety impacts.”

As noted in § 630.1004—definitions of “Safety” and “Work Zone Impacts,” work zone safety impacts refer to work-zone-induced potential hazards to road users in the vicinity of a work zone and highway workers at the work zone interface with traffic. Anticipated traffic safety impacts in this paragraph refer to identifying the safety risks to work zone workers and road users associated with various factors such as exposure to traffic, time of activity, type of activity, intrusion of motorized traffic into activity area, lane widths, speed limits, crash frequency and severity prior to work zone implementation, and pre-work zone inspection findings. This safety impact identification approach can be a simple checklist for short-term and limited-exposure projects and a more involved assessment for long-term and complex projects.

A commenter recommended adding a minimum safety requirement for work zone workers to this section.

The FHWA does not see a need to add specific requirements for worker safety in this paragraph as worker safety is addressed in various sections of 23 CFR 630 Subparts J and K, and MUTCD 11th edition.

The FHWA referenced four benefit-cost studies in the NPRM Subpart-K discussion section to justify that research and data did not support the thresholds stated in the Moving Ahead for Progress in the 21st Century Act (MAP-21). In response, two commenters stated that these studies overestimated the cost of positive protection devices.

Studies found it difficult to justify positive protection based on crash statistics and benefit cost analysis. Due to limited availability and challenges associated with collecting positive protection-specific data, FHWA has no new credible information to justify updating the implementation thresholds of positive protection strategies.

Seven commenters provided input on this paragraph. Five commenters opposed the use of the “shall” condition for implementing positive protection devices and mentioned that these devices require a significant investment. They suggested retaining the existing rule provision language, which would allow States to determine the need for positive protection devices based on an engineering study. They also mentioned that several previous studies have demonstrated that cost-benefit analyses do not justify this policy. In addition, two commenters noted that the requirement to use positive protection devices “unless an engineering study determines otherwise” is the opposite of the current rule and contrary to the findings of prior research. These commenters also asked about the extent of conducting these engineering studies across different projects.

The FHWA made a minor update but retained the remaining language as proposed in the NPRM. In the NPRM, FHWA added the “shall” condition for the use of positive protection in response to increasing trend of fatalities in worker struck incidents and to address the requirements in MAP-21 Section 1405. Since this is a “shall” condition, FHWA is restricting the implementation requirement to the situations where the workers are most vulnerable, which is work zones with high anticipated operating speeds that provide workers no means of escape from motorized traffic intruding into the workspace. The FHWA added the “high anticipated operating speeds” as the majority of fatal work zone crashes occur on high-speed roadways such as urban and rural interstates, urban and rural principal arterials, and freeways/expressways. 6 These facility types generally operate at high speeds (45 mph or greater). The FHWA prioritizes the implementation of enhanced safety measures in high-risk environments, ultimately safeguarding the lives of those working in the most vulnerable conditions. The language adopted is consistent with that used in MAP-21 Section 1405 for these situations. However, agencies may choose to use positive protection devices on roadways with lower operating speeds.

State DOTs may use a tiered approach to conduct engineering studies for the type of work zones identified in this provision. Agencies may develop their engineering analysis criteria based on factors such as type of work, exposure to traffic, expected work zone level of effort, worker protection needs, vehicle mix, time of day, geometry, and location. For example, Caltrans established Guidelines on the Use of Positive Work Zone Protection and Mitigation Measures, 7 which provide a detailed approach and weightage criteria to conduct a safety risk assessment and engineering analysis to determine positive protection and other mitigation measures for their work zones. This guidance document also allows Caltrans to determine the required level of positive protection based on the safety risk. The engineering analysis may vary from a simple assessment of checklist items summarized in a few paragraphs for smaller projects ( e.g., short-term maintenance) to a more thorough assessment and risk analysis of checklist items for larger/complex projects ( e.g., bridge approach slab replacement, widening projects, and shoulder maintenance).

A commenter suggested six recognized serious hazards for consideration of positive protection. This commenter also suggested including a requirement for States to specify positive protection and provide an associated pay item when serious hazards are foreseen or encountered on a project unless an agency determines the same to be impractical under applicable agency standards.

The serious hazards recognized by the commenter did not have any changes compared to the NPRM language on example scenarios and situations for positive protection consideration, except for “Any other situation not specifically outlined above which merits the use of positive protection.” The FHWA updated § 630.1108(b)(4) to include “within one lane width” as an example for determining closeness of workers to open travel lanes as a result of work operations. Section 630.1106(a) addresses the commenter's suggestion for agencies to specify the use of positive protection in their policy whereas § 630.1108(d)(2) addresses the suggestion for inclusion of pay items for such specified positive protection.

A commenter opposed the omission of language associated with use of temporary longitudinal barriers to protect workers. This commenter also mentioned that the “high anticipated operating speeds” qualifier used in this positive protection requirement regulation does not fully comply with MAP-21.

As longitudinal barrier is one type of positive protection device, the NPRM already covers these barriers in the engineering study requirement. In addition, agencies can refer to 23 U.S.C. 112(g)(4) for examples of positive protection devices, which include temporary traffic barriers, crash cushions, and other strategies. As indicated previously, the majority of fatal and injury work zone crashes occur on high-speed roadways such as urban and rural interstates, rural interstates, urban and rural principal arterials, and freeways/expressways. These facility types generally operate at high speeds (operating speeds of 45 mph or greater). The language adopted is consistent with that used in MAP-21 Section 1405 for these situations.

One commenter provided input on this paragraph. Note that FHWA did not propose any changes to existing language for this paragraph. The commenter suggested updating the requirement from “should” to “shall.”

The FHWA did not make any changes to this provision. The FHWA retained the “should” condition to provide agencies with the flexibility to explore exposure and other traffic control measures as an alternative suite of options to preserve safety.

Two commenters provided comments in response to this paragraph. One commenter supported the inclusion of AFADs as an exposure control device. Another commenter recommended defining “protection vehicles.”

The FHWA updated § 630.1108(c)(22) from “Protection vehicles” to “Protection or shadow vehicles used to protect workers and equipment from impacts by errant vehicles” to reflect the fact that there is inconsistency in how agencies define and use these terms.

Six commenters provided input on this paragraph. Note that FHWA did not propose any changes to existing language for this paragraph. All six commenters recommended removing references to Illinois and Minnesota Quality Standards for Work Zone Traffic Control Devices from § 630.1110 footnotes. They opposed the suggestion of guidelines from other agencies in the footnotes and mentioned that agencies should be able to establish their own maintenance of TTC device standards or use ATSSA's “Quality Guidelines for Temporary Traffic Control Devices and Features.”

The FHWA encourages agencies to establish their TTC device standards as applicable to their needs and policies. To this end, FHWA removed references to agency-specific quality standards (Illinois DOT and Minnesota DOT) and retained one of the commonly used industry standards (ATSSA's Quality Guidelines for Temporary Traffic Control Devices and Features) as an example.

Nine commenters asked about the compliance timeframe for the Subpart K final rule. The commenters asked for the effective date to be minimum 12 months from the date of final rule publication.

In the anticipation that the rule is published in 2024, FHWA proposed the effective date of December 31, 2025, which allows at least 12 months for States to update their policy in compliance with the rule. The implementation date for the updated policy will be December 31, 2026.

The FHWA is incorporating by reference the most current version of the MUTCD. At the time of NPRM publication, the rulemaking to adopt the 11th edition of the MUTCD was still underway. The FHWA published the 11th edition of MUTCD in December 2023. To this end, FHWA updated the references to incorporate the “Manual on Uniform Traffic Control Devices for Streets and Highways,” 11th edition dated December 2023. This document was developed by FHWA to define the standards used by road managers nationwide to install and maintain traffic control devices on all public streets, highways, bikeways, and private roads open to public travel.

The document that FHWA is incorporating by reference is reasonably available to interested parties, primarily State DOTs, local agencies, and Tribal governments carrying out Federal-aid highway projects. This documentrepresents the most recent refinements that have been formally accepted and are currently in use by the transportation industry. The document incorporated by reference is available on the docket of this rulemaking and at the sources identified in the regulatory text below. The specific standards are discussed in greater detail elsewhere in this preamble.

The FHWA has considered the impacts of this rule under Executive Order (E.O.) 12866 (58 FR 51735, Oct. 4, 1993), Regulatory Planning and Review, as amended by E.O. 14094 (“Modernizing Regulatory Review”), and DOT's regulatory policies and procedures. The Office of Information and Regulatory Affairs within the Office of Management and Budget (OMB) has determined that this rulemaking is not a significant regulatory action under section 3(f) of E.O. 12866. Accordingly, OMB has not reviewed it under that E.O.

It is anticipated that the final rule would not be economically significant for purposes of E.O. 12866. The final rule would not have an annual effect on the economy of $200 million or more. The final rule would not adversely affect in a material way the economy, any sector of the economy, productivity, competition, or jobs. In addition, the changes would not interfere with any action taken or planned by another Agency and would not materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs.

In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601-612), FHWA has evaluated the effects of this final rule on small entities and has determined that it is not anticipated to have a significant economic impact on a substantial number of small entities. This rule applies to all State and local highway agencies that use Federal-aid highway funding in the execution of their highway program. However, the regulatory action only directly impacts State requirements regarding work zone programmatic reviews, and otherwise would clarify the characteristics of a significant project. State governments are not included in the definition of small entity set forth in 5 U.S.C. 601. Therefore, FHWA certifies that the final rule will not have a significant economic impact on a substantial number of small entities.

This final rule would not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48). This final rule would not result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $168 million or more in any one year (2 U.S.C. 1532). In addition, the definition of “Federal Mandate” in the Unfunded Mandates Reform Act excludes financial assistance of the type in which State, local, or Tribal governments have authority to adjust their participation in the program in accordance with changes made in the program by the Federal Government. The Federal-aid highway program permits this type of flexibility.

This final rule has been analyzed in accordance with the principles and criteria contained in E.O. 13132, and FHWA has determined that this final rule would not have sufficient federalism implications to warrant the preparation of a federalism assessment. The FHWA also has determined that this final rule would not preempt any State law or State regulation or affect the States' ability to discharge traditional State governmental functions.

Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et seq. ), Federal Agencies must obtain approval from OMB for each collection of information they conduct, sponsor, or require through regulations. The FHWA has determined that the rule does not contain collection of information requirements for the purposes of the PRA.

The FHWA has analyzed this final rule pursuant to the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq. ) and has determined that it is categorically excluded under 23 CFR 771.117(c)(20), which applies to the promulgation of rules, regulations, and directives. Categorically excluded actions meet the criteria for categorical exclusions under the Council on Environmental Quality regulations and under 23 CFR 771.117(a) and normally do not require any further NEPA approvals by FHWA. The FHWA does not anticipate any adverse environmental impacts from this final rule.

The FHWA has analyzed this regulatory action in accordance with the principles and criteria contained in E.O. 13175, “Consultation and Coordination with Indian Tribal Governments.” The purpose of the regulatory action is to improve motorist, worker, and other vulnerable road user safety and mobility on Federal-aid highway projects. The FHWA believes that the regulatory action would not have substantial direct effects on one or more Indian Tribes, would not impose substantial direct compliance costs on Indian Tribal governments, and would not preempt Tribal law. Therefore, the funding and consultation requirements of E.O. 13175 do not apply and a Tribal summary impact statement is not required.

The E.O. 12898 requires that each Federal Agency make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minorities and low-income populations. The FHWA has determined that this final rule does not raise any environmental justice issues.

As required by 5 U.S.C. 553(b)(4), a summary of this rule can be found in the Abstract section of the Department's Unified Agenda entry for this rulemaking at [ https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202310&RIN=2125-AG05 ].

A Regulation Identifier Number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda twice each year. The RIN contained in the heading of this document can be used to cross reference this action with the Unified Agenda.

Issued under authority delegated in 49 CFR 1.81 and 1.85.

In consideration of the foregoing, FHWA amends Title 23, Code of Federal Regulations, Part 630, as set forth below:

The Coast Guard will enforce a safety zone for Hurricanes, Tropical Storms, and other Storms with High Wind for portions of Claytor Lake from October 30th, 2024, through January 31st, 2025, to protect personnel, vessels, and the marine environment from potential hazards created by hazardous debris within the waterway due to tropical storm Helene. The safety zone is now in Port Condition RECOVERY. This action is being taken to provide for the safety of life on navigable waterways while cleanup operations are conducted. The safety zone encompasses Claytor Lake.

It is bound by the following positions: Claytor Lake: 37°02′2.4″ N, 80°39′40.7″ W; 37°04′31.5″ N 80°35′06.8″ W.

During enforcement periods, the operator of a vessel in the regulated area must comply with directions from the Coast Guard Patrol Commander, including a Coast Guard coxswain, petty officer, or other officer operating a Coast Guard vessel and a Federal, State, and local officer designated by or assisting the Captain of the Port Virginia (COTP) in the enforcement of the safety zone. To seek permission to enter, contact the COTP or the COTP's representative by VHF-FM Channel 16.

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.

Congress created the National Flood Insurance Program (NFIP) through enactment of the National Flood Insurance Act of 1968 (NFIA) (title XIII of Pub. L. 90-448, 82 Stat. 572), 42 U.S.C. 4001 et seq. The NFIP is a Federal program enabling property owners in participating communities that adopt and enforce floodplain management regulations to purchase insurance as a protection against flood losses. A consumer may purchase an NFIP federally-backed flood insurance policy either: (1) directly from the Federal Government through a direct servicing agent (referred to as “NFIP Direct”); or (2) from a participating private insurance company through the Write Your Own (WYO) Program. The Standard Flood Insurance Policy (SFIP) sets out the terms and conditions of insurance. See 44 CFR part 61, appendix A. FEMA establishes terms and conditions of coverage and sets premiums for coverage. The terms, coverage limits, and flood insurance premiums are the same whether a policy is purchased from the NFIP Direct or a private WYO insurance company in the WYO Program. See 44 CFR 62.23(a). Under the regulations in place prior to this rule change, FEMA required policyholders to pay their applicable SFIP annual premium in full at the time of application. 1 44 CFR 61.4(b). Requiring payment of the annual premium in full at the time of application reduced administrative costs to the program, and because of the seasonal nature of flooding, ensured the receipt of premium and exposure to risk would align. 2 In 2012, Congress passed the Biggert-Waters Flood Insurance Reform Act (BW-12), amending the NFIA to mandate that FEMA provide NFIP policyholders who were “not required to escrow their premiums and fees for flood insurance as set forth under section 102 of the Flood Disaster Protection Act of 1973 (42 U.S.C. 4012a)  3 with the option of paying their premiums annually or in more frequent installments.” Sec. 100205(d), Public Law 112-141, 126 Stat 405. The Homeowner Flood Insurance Affordability Act of 2014 (HFIAA) amended BW-12 and the NFIA regarding the frequency of the installments by striking the language “annually or in more frequent installments” and inserting “annually or monthly” instead. 42 U.S.C. 4001 et seq.; sec. 11, Public Law 113-89, 128 Stat. 1025 (2014). The NFIP, having operated for several decades within an annual payment structure for premiums, provides payment compliance measures that will apply to the amended regulations discussed herein. 4 The changes in this rule will bring FEMA's regulations into compliance with the nondiscretionary statutory mandate to provide policyholders with the option of paying their premiums annually or in monthly installments.

This rulemaking, in addition to fulfilling a statutory mandate, will also reduce barriers to purchasing flood insurance. In administering the NFIP, FEMA provides information to help communities and individuals better understand their flood risk. However, flood risk knowledge by itself is not enough if households cannot act to protect themselves. Providing an option for monthly installments will expand access to flood insurance to meet the evolving needs of the Nation. The option to pay in installments may also increase policyholders' budgetary flexibility by alleviating cash flow pressure, as they could use the deferred payment to address other monthly needs.

Some consumers may lack the financial ability to pay the entire premium at one time. 5 In this scenario, consumers will need to either finance their purchase of flood insurance through debt ( e.g., interest-bearing credit cards) or forego flood insurance protection entirely. Both outcomes can exacerbate negative financial outcomes following a flood disaster, as many consumers may lack adequate funds to recover. The installment plan relieves the immediate financial pressure on policyholders from paying the entire premium amount at one time.

Finally, the ability to pay in installments may result in more policyholders retaining their flood insurance protection. Under the NFIP's current annual premium payment requirement, a policyholder who pays annually typically only interacts with their flood insurance coverage at the time of initial purchase or renewal. The policyholder must pay the full cost of flood insurance all at once, creating a different trade-off dynamic than when the cost is spread out. Facing a one-time annual payment, a policyholder may rationalize a decision to opt out of renewing on grounds that they perceive their risk to be low or that they will instead save the money spent on premium to self-fund repairs. In contrast, policyholders who make more frequent flood insurance payments will have an ongoing reminder that they are protected against flood, and may be more aware of flood alerts, news about flooding, and more accurately perceive their risk. At the time of renewal, the ability to pay in installments may support a decision to retain flood insurance.

FEMA is revising 44 CFR parts 61 and 62 as follows to add an installment plan payment option for NFIP policies.

Section 61.4(b) requires that flood insurance applicants pay their full policy premium at the time of application. FEMA is removing paragraph (b) because it conflicts with the option to pay by monthly installment plan. FEMA will retain paragraph (a) of § 61.4, as that section is unrelated to installment plans, will undesignate paragraph (a), and will rename § 61.4 “Properties in violation of law, regulation or ordinance” as this more accurately describes the contents of this revised section.

Section 61.10 provides that FEMA will not issue or renew flood insurance unless FEMA receives: (a) the full amount due (including applicable premiums, surcharges, and fees); and (b) a complete application, including the information necessary to establish a premium rate for the policy, or submission of corrected or additional information necessary to calculate the premium for the renewal of the policy. FEMA is revising paragraph (a) to specify that FEMA will not issue or renew flood insurance unless it receives the full amount due, which is either presentment of the full annual premium, or presentment of the first of a series of monthly premium installment payments inclusive of all surcharges, fees, and assessments.

The revised paragraph (a) requires the first payment to include all surcharges, fees, and assessments because the NFIA categorizes premiums separately from the surcharges, fees, and assessments of administrative expenses the agency is authorized to collect. See, e.g., 42 U.S.C. 4014(a)(1)(B)(ii); 42 U.S.C. 4014(a)(1)(B)(iii). In 1990, Congress authorized the Federal Policy Fee (FPF) which helps pay for the administrative expenses of the program, including the floodplain management and mapping activities FEMA is required to fund. 6 42 U.S.C. 4017a.; sec. 100212, Public Law 112-141, 126 Stat. 992. In BW-12, Congress also authorized FEMA to establish and maintain a National Flood Insurance Program Reserve Fund to cover future claim and debt expenses, especially those from catastrophic disasters. 42 U.S.C. 4014(a)(1)(B)(iii).

As a result of these statutory distinctions, FEMA currently separates the premium from the fees/surcharges/assessments in the annual bill, allowing policyholders to see their flood risk. Combining divided fees and surcharges with all the installment premium payments might distort the important risk assessment signal to policyholders. See, e.g., 42 U.S.C. 4014(a)(1)(B)(ii)-(iii). In this rulemaking, FEMA continues to separate the premium from the fees/surcharges/assessments and requires payment of the fees and surcharges up front instead of dividing them over the life of the policy. Fees and surcharges are both used to carry out certain mandatory operational activities, such as floodplain management and mapping, and fund the interest-earning National Flood Insurance Reserve Fund. 42. U.S.C. 4017(a); 42 U.S.C. 4017(c). Upfront payment of fees and surcharges with the initial premium payment will reduce administrative costs for the NFIP, a benefit to all policyholders, and align the NFIP with other commercial services familiar to policyholders ( e.g., cable, where installation fees, taxes and the like are due up front).

FEMA is moving to paragraph (a) the language currently in paragraph (b) that explains FEMA must receive a complete application or submission of corrected or additional information necessary to establish a premium.

FEMA is revising paragraph (b) to include paragraphs (b)(1) and (2). The Standard Flood Insurance Policy currently provides that FEMA will reduce coverage on a policy if the premium it receives is not sufficient to buy the kinds and amounts of coverage requested. See e.g., 44 CFR part 61, appendix A(1), art. VII.D.2. This makes sense in the context of an annual premium payment but not for monthly payments; as such, FEMA has revised paragraph (b) to provide that FEMA will not reduce coverage or reform the policy for any policyholder who makes timely installment payments in accordance with the terms identified in paragraph (a)(1)(i)(B). If a policyholder misses an installment payment, current regulations provide an opportunity to cure, as a policyholder can provide any missed or additional payment and avoid reductions in coverage or policy reformation. See e.g., 44 CFR part 61, appendix A(1), art. VII.D.3.a.(1).

Revised paragraph (b)(1) will further provide that in the event of a claim occurring prior to a policyholder completing all installment payments, the policyholder must remit the balance of the premium owed. The policyholder may settle their balance out of claim proceeds in accordance with the Standard Flood Insurance Policy. See e.g., 44 CFR part 61, appendix A(1), art. VII.D.3.a(3). FEMA is adding this language to avoid a scenario where the policyholder would consider withholding premium for reasons other than ability to pay, such as when they disagree with aspects of FEMA's claim handling, and FEMA would be forced to reduce coverage. See e.g., id. at appendix A(1), art. VII.D.2-3. Giving policyholders the option to pay their remaining premium out of their claims proceeds mitigates this risk.

Revised paragraph (b)(2) will provide that FEMA will require payment in full for premiums in the next policy term for any policyholder who fails to make all installment payments in accordance with the terms identified in paragraph (a)(1). 7 A significant portion of policyholders are subject to seasonal flooding risk, meaning that the likelihood they will file a claim is higher during certain months of the year. For example, many policyholders in Florida face the risk of flooding due to tropical storms and hurricanes, which typically occur from the start of June through November. The purpose of paragraph (b)(2) will be to ensure policyholders are not incentivized to miss payments or cancel their coverage before the end of the policy term (for instance, at the end of hurricane season), as this could potentially create adverse financial consequences for the NFIP. 8

Section 62.23 governs FEMA's WYO program. Paragraph (h) describes the procedures used by WYO companies in underwriting and servicing flood insurance policies. Paragraph (h)(7) currently authorizes WYO companies to offer premium payment plans so long as the net premium depository requirements specified under the NFIP/WYO Program accounting procedures are met. This subsection also states that a WYO company's cancellation of a policy for non-payment of premium will not produce a pro rata return of the net premium deposit to the WYO company. In effect, this subsection authorizes WYO companies to offer installment payment plans if they pay the full annual premium to the NFIP and bear the risk of policyholders' non-payment of installments.

FEMA is revising paragraph (h)(7) to explain that WYO companies must offer premium payment plans under the terms prescribed by the FEMA Administrator in § 61.10(a)(1). FEMA's current regulations have provided WYO companies the ability to offer payment via installment plan, but to date, no WYO company has chosen to offer it. Because FEMA has a statutory obligation to offer policyholders the option of paying their premium via monthly installment plan, FEMA will require WYO companies to offer installment plans consistent with this rule. See 42 U.S.C. 4015. Requiring adherence to FEMA's installment plan terms will ensure that all eligible policyholders with federally backed flood insurance will be treated similarly.

The Administrative Procedure Act (APA) generally requires agencies to publish a notice of proposed rulemaking in the Federal Register and provide interested persons the opportunity to submit comments. See 5 U.S.C. 553(b) and (c). The Administrative Procedure Act, 5 U.S.C. 553(b)(3)(B), provides that, when an agency for good cause finds that public notice and comment procedures are impracticable, unnecessary, or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. FEMA has determined that there is good cause to issue this rulemaking without prior proposal and opportunity for comment. The amendments to the NFIA require FEMA to offer policyholders the option to pay their premiums in monthly installments and the agency lacks discretion to reach a different outcome in response to comment. This rule revises two sections in FEMA's prior regulations requiring policyholders to pay the full amount due on a flood insurance policy before it would issue a policy for flood insurance. FEMA previously interpreted the full amount due to include the annual premium, fees and surcharges, or the amount of premium due at the time of the claim. Previously, the regulations authorized, but did not require, WYO companies to offer the monthly installment plan option to policyholders. The amendment to the NFIA requires FEMA and servicing agent, NFIP Direct, to offer the monthly installment plan as an option to policyholders. The regulations now accurately reflect the statutory language of the NFIA. Considering the statutory mandate, FEMA revises these sections without discretion.

Section 553(a)(2) of the APA provides an exception to this prior notice and comment requirement for matters relating to public property, loans, grants, benefits, or contracts. The exemption covers both narrow “managerial” proprietary decisions and broader proprietary “matters of interpretation and policy.”  Alphapointe v. Dep't of Veterans Affairs, 416 F. Supp. 3d (D.D.C. 2019) ( quoting Nat'l Wildlife Fed'n v. Snow, 561 F.2d 227, 231-32 (D.C. Cir. 1976)). The case law interpreting the requirement sets forth a relatively brief framework for analysis: namely, that the exempted subject matters are “clearly and directly” implicated in the rulemaking at issue. Humana of S.C., Inc. v. Califano, 191 U.S. App. D.C. 368, 590 F.2d 1070, 1082 (1978) (That the governmental function is not strictly “proprietary,” or the regulation's character is not “mechanical,” does not curtail section 553(a)(2)'s permissive effect. Public policy may be sorely affected, and the wisdom of public input manifest, but the statutory exemption still prevails when “grants,” “benefits,” or other named subjects are “clearly and directly” implicated.).

As described more fully in the background section, supra, this rule is clearly and directly related to contracts. The NFIP is a Federal program enabling property owners in participating communities to purchase insurance as a protection against flood losses. A consumer may purchase a SFIP either: (1) directly from the Federal Government through a direct servicing agent (referred to as “NFIP Direct”); or (2) from a participating private insurance company through the Write Your Own (WYO) Program. The SFIP sets out the terms and conditions of insurance. See 44 CFR part 61, appendix A. FEMA establishes terms and conditions of coverage and sets premiums for coverage. The terms, coverage limits, and flood insurance premiums are the same whether purchased from the NFIP Direct or the WYO Program. See 44 CFR 62.23(a). For an eligible policyholder to obtain flood insurance from the NFIP, they must pay their premium and any surcharges, fees and assessments, and in exchange, they will be covered by the SFIP ( i.e., an insurance contract). This rule provides an additional approach to payment of premium to complete the contractual relationship. This statutory construct is similar to other Federal programs in which Congress has authorized an agency to enter into contracts with individuals and upheld the application of the APA contract exemption to a subsequent agency policy change that ultimately resulted in a change in terms for individual contractees or policyholders. See, e.g., Rainbow Valley Citrus Corp. v. FCIC, 506 F.2d 467 (9th Cir. 1974) (Plaintiffs, three citrus growers in Arizona, sued the Federal Crop Insurance Corporation (FCIC) challenging the FCIC's decision to discontinue citrus insurance in their area, and argued that the decision was in violation of the notice and comment rulemaking requirement under the APA. The Court found in favor of the FCIC, citing to the APA contract exemption.); Housing Authority of the City of Omaha vs. U.S. Housing Authority, 468 F.2d 1 (8th Cir. 1972) (Plaintiffs, local housing authorities, sued the Department of Housing and Urban Development (HUD) alleging that two circulars issued by HUD that required Plaintiffs to include certain tenant's rights in contracts the housing authorities entered into with renters was in violation of the notice and comment rulemaking requirement under the APA. The Court found in favor of HUD citing to the APA contract exemption.).

FEMA acknowledges its general policy to provide for public participation in rulemaking unless it determines that circumstances warrant a departure from that general policy. 44 CFR 1.3(a) and (c). The circumstances presented here warrant such a departure. The statute requires FEMA to offer policyholders the option to pay in monthly installments and notice and opportunity for comment on the revisions is unnecessary because the agency lacks discretion to reach a different outcome regarding installment plan payments for policyholders in response to comment.

Executive Orders 12866 (Regulatory Planning and Review), as amended by Executive Order 14094 (Modernizing Regulatory Review), and 13563 (Improving Regulation and Regulatory Review) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility.

The Office of Management and Budget (OMB) has not designated this rule a significant regulatory action under section 3(f) of Executive Order 12866, as amended by Executive Order 14094. Accordingly, OMB has not reviewed this regulatory action.

In BW-12 and the HFIAA, Congress amended the NFIA requiring FEMA to provide certain eligible policyholders with a federally backed SFIP, “the option of paying their premiums annually or monthly.” Sec. 100205(d), Public Law 112-141, 126 Stat. 405, 919 (2012) (codified at 42 U.S.C. 4015(g)), as amended by sec. 11(a), Public Law 113-89, 128 Stat. 1020, 1025 (2014). Currently, FEMA and WYO companies bill their customers' NFIP premiums on an annual basis as a lump sum. This rule will fulfill the statutory requirement by allowing residential and commercial policyholders to pay their premiums in 11 to 12 payments over the course of the year. 9

FEMA, through its subcomponent the Federal Insurance Directorate, is promulgating this rule to implement a monthly installment payment plan option for policyholders not currently paying flood insurance premiums through escrow. 10 The installment plan option is available for residential and non-residential SFIP policyholders.

A monthly installment payment plan is in keeping with the property and casualty insurance industry standard. Aligning with these consumer expectations will make it easier for consumers to consider acquiring flood insurance. Additionally, some consumers may lack the financial ability to pay the entire premium at one time. The option to pay in installments may increase policyholders' budgetary flexibility by alleviating cash flow pressure, as they could use the deferred payment to address other needs.

NFIP enables homeowners, renters, and businesses in participating communities to purchase Federal insurance protection against losses from floods. Communities participate in the NFIP after they agree to adopt and enforce minimum floodplain development regulations designed to reduce future flood risk in Special Flood Hazard Areas (SFHAs).

As of April 30, 2024, according to FEMA's PIVOT database, 11 there were 4,664,515 NFIP policies in force, including 3,248,737 residential Dwelling Form Policies, 290,800 Commercial Policies, 1,115,443 Condominium Association Policies and 9,535 Group Flood Insurance Policies (GFIPs). GFIPs are not included in the population of policyholders that will pay monthly, 12 which means the affected population of potentially eligible individual policies is 4,654,980 (3,248,737 + 290,800 + 1,115,443).

FEMA expects the number of individual policyholders who will make the change from paying annually to paying monthly will be much less than the total eligible affected population. FEMA estimates that 45 percent  13 of potentially eligible individual policyholders are residential mortgage holders who already pay their NFIP premiums on a regular basis (generally monthly) into an escrow account as required under section 102 of the Flood Disaster Protection Act of 1973. FEMA does not have enough information to estimate how many condominium association policyholders might switch from an annual payment to a monthly payment. Condominium associations typically include flood insurance payments in their condominium association fees  14 which means such associations typically collect the premium before the renewal premium is due. FEMA does not expect condo associations to utilize installment plans because these associations will have the available cash reserves to pay a yearly premium. Switching to monthly payments would increase uncertainty and unnecessarily complicate their accounting practices.

Excluding these two populations from the analysis decreases the total population from approximately 4.7 million policyholders to 1.9 million policyholders. Specifically, according to PIVOT data, in 2023 there were 1,794,911 residential policyholders who did not have a mortgage  15 and were not condominium associations who would most likely opt for installment plans as they must currently make an annual lump sum payment. Additionally, FEMA expects 76,876 small businesses and houses of worship (according to PIVOT data) to change to monthly payment installments because they typically have smaller cash reserves on hand. 16 This makes a total of 1,871,787 (1,794,911 + 76,876) out of 4,664,515 policyholders that will utilize monthly installment plans to pay their flood insurance premiums. For the purposes of this analysis, FEMA assumed that all eligible policyholders, excluding residential mortgage holders, condominium associations, and larger commercial policyholders will utilize installment plans. This leaves 1,453,826 mortgage-paying residential policyholders, 1,115,443 condominium association policyholders, and 211,175 commercial property policyholders that are not expected to opt for installment plans. This may overestimate the number of policyholders paying in installments and the overall economic impact of this rule.

Following OMB Circular A-4 guidance, FEMA assessed impacts of this rule against a no-action baseline. The no-action baseline considers what the world will look like without this rule. Accordingly, measuring the rule against a no-action baseline shows the effects of the rule as compared to current FEMA practice, because FEMA has not implemented the option to pay flood insurance premiums through installment plans. Currently, SFIPs are issued on a one-year term, and policyholders must pay full annual premiums at the inception of policy coverage and at annual renewal.

FEMA used policies-in-force data from 2023 to 2024  17 to estimate the number of affected NFIP policyholders. During this period, the number of NFIP policies was 4,720,559 on April 1, 2023 and 4,672,375 policies on April 1, 2024. FEMA was not able to forecast an increase in currently uninsured property owners purchasing flood insurance once the installment plan option is available. However, FEMA anticipates the flexibility provided through implementation of an installment payment plan will likely result in greater retention of policyholders and incentivize greater participation in the NFIP.

Flood insurance premiums are subject to change year-to-year due to any number of factors that may cause unexpected increases in yearly premiums. The option to pay in installments may relieve some of the burden of changes in flood insurance premiums. Due to the numerous factors affecting premium rates and the rate of flood insurance uptake nationwide, FEMA is unable to forecast the impact that the availability of installment plans may have on affordability or future participation in the NFIP.

This rule will result in start-up (upfront) and annual costs to FEMA and WYO insurance companies. Over 10 years, FEMA estimates a total cost of $34,181,503 undiscounted. The following is a breakdown of the specific costs to FEMA,WYO companies, and NFIP Policyholders.

Federal Cost s: FEMA expects to incur development costs to adapt current NFIP systems to handle the administration of installment plans and payments that will be processed by the existing pay.gov system. 18 Based on estimates from FEMA subject matter experts, development work will require one General Schedule (GS)-13 Step 5 and eight GS-12 Step 5 equivalent contractors for a total of 700 hours. According to the Office of Personnel Management (OPM), hourly wage rates in the Washington-Baltimore-Arlington locality for GS-13 Step 5 is $60.83 and GS-12 Step 5 staff is $51.15. 19 FEMA assumes the contractors would have equivalent salaries to their respective GS levels. The combined hourly staff wage rate equals $470.03 ((1 × $60.83) + (8 × $51.15)). Additionally, FEMA adds a 1.45 wage multiplier to the wage rate to account for the full cost of employment, making it $681.54 ($470.03 × 1.45) per hour for 700 hours for a total of $477,078 (((1 × $60.83) + (8 × $51.15)) × 1.45 × 700). 20

To create marketing materials, FEMA subject matter experts estimate a team of four GS-14 level employees working for 40 hours each on this project. Using the prior methodology, OPM wage rate for a GS-14 Step 5 is $71.88 per hour and including the wage multiplier equals $104.23 ($71.88 × 1.45) per hour for a total cost of $16,677 ($104.23 × 4 staff × 40 hours). FEMA expects a total of $493,755 (477,078 + $16,677) for startup costs.

For ongoing costs, FEMA expects to hire two additional GS-13 Step 5 employees to handle the installment plan program full time. This would cost $368,152 (2 GS-13 Step 5 × $126,949 annual salary × 1.45) per year. 21 These costs include the cost for FEMA developing and testing guidance materials, systems, trainings, and marketing content as well as ongoing support for managing installment plans. FEMA anticipates that it will largely use existing NFIP infrastructure and resources to support implementation of installment plans and that annual costs associated with maintaining installment plan policies are comparable to annual policies and thus do not represent an additional cost.

WYO Costs: FEMA's current regulations have provided WYO companies the ability to offer payment via installment plan, but to date, no WYO company has chosen to offer it. Because FEMA has a statutory obligation to offer policyholders the option of paying their premium via monthly installment plan, FEMA will require WYO companies to offer installment plans consistent with this rule. WYO insurers will use their customary business practices to secure monthly payment of flood insurance premiums from policyholders. 22 However, for many WYO insurers, flood insurance premiums are handled separately and will require additional systems or modification of existing systems and infrastructure to support flood insurance installment payment plans. FEMA does not have access to internal WYO insurance company data on their information technology (IT) costs. However, based on FEMA's experience with managing IT costs for insurance purposes, FEMA estimates eight WYO vendors  23 to each incur $200,000 in costs for updating their internal systems for a total upfront starting cost of $1,600,000 ($200,000 × 8) in year 1. 24 Based on feedback from WYO vendors and their finance teams, FEMA expects each of the eight WYO vendors to hire 2 additional staff members for the support and operation of installment plan systems, incurring $1,986,152 (8 × 2 × $85,610 × 1.45) per year. 25 Bureau of Labor Statistics data regarding insurance underwriters is used as a proxy for the salary of the additional hires.

Policyholder Costs: FEMA estimates that there will be no additional financial costs to policyholders. 26 However, it may result in a small amount of time burden to make 12 installment payments in lieu of one annual payment. Policyholders will make payments via automatic payments from a bank account, debit card, or credit card through the pay.gov system. 27 FEMA estimates a total burden hour cost of $8,544,708 for NFIP policyholders to enroll in pay.gov. This estimate is based on an expectation that pay.gov account creation takes 6 minutes on average  28 for a total of 187,179 hours for the estimated 1,871,787 policyholders that will use the system. At a fully loaded wage rate of $45.65 ($31.48 × 1.45) per hour  29 30 for all workers, this makes a total of $8,544,708 one-time cost for account creation. Policyholders that do not have access to pay.gov payment methods will not be eligible. Policyholders that decide to switch to installment plans will receive their information via already existing marketing sources and thus will not incur additional familiarization costs.

Table 1 shows FEMA, WYO, and policyholder estimated costs over a 10-year period. The total cost over 10 years equals $34,181,503 undiscounted and $31,577,602 discounted at 2 percent in 2023 dollars.

The benefits from a monthly installment plan option will include increased NFIP policy retention and improved flexibility to policyholders. Allowing policyholders the option of making flood insurance payments in monthly installments rather than a single annual payment provides increased budgetary flexibility on how to use the deferred payment which may be especially relevant for policyholders unable to pay a lump-sum annual premium or otherwise experiencing a financial burden thereby alleviating some cash flow pressure. FEMA believes offering installment plans will help policyholders remain in the program. Policyholder retention also maintains the societal and policyholder benefits associated with the NFIP in proportion to those policyholders retained. FEMA does not have data available to estimate the number of policyholders that will remain in the program due to the installment plan option, or to project any growth in the number of policies.

Providing a monthly installment brings the NFIP into alignment with other insurance (auto, homeowners) that typically allow monthly payments, making the flood insurance product more attractive to potential policyholders, and potentially increasing participation in the NFIP.

FEMA does not expect transfers from this rule since it does not impact what policyholders pay in premiums, but the timing of when they pay. Policyholders may make investment gains or interest savings based on retaining money throughout the year that they would have spent on a lump sum payment. However, FEMA is unable to estimate if and how policyholders will adjust their behavior based on the ability to pay in installments.

FEMA did not consider any alternatives to issuing this regulation allowing monthly installments. BW-12 and HFIAA collectively mandated FEMA to promulgate a rule allowing the option of paying flood insurance premiums either annually or monthly. As such, FEMA must pursue a regulatory action to accomplish this requirement. While FEMA could have set a different premium schedule in addition to monthly payments ( i.e., quarterly or biannual), FEMA considers monthly payments to be the most appropriate payment schedule that poses the least burden on policyholders.

In summary, FEMA quantitatively estimated the impacts of the rule. This includes estimating the costs to FEMA, WYO companies, and policyholders. In terms of benefits, FEMA anticipates the implementation of an installment payment plan will result in greater retention of policyholders and incentivize greater participation in the NFIP. Transfer payments will be minimal. This rule fulfills a statutory requirement in a cost-effective manner and warrants implementation. For the future 10-year period, the estimated costs of the rule are $34,181,503 undiscounted. The Present Value (PV), discounted at 2 percent, is $31,577,602 ($3,515,425 annualized). The primary benefit associated with installment plans is increased retention and potential increased participation in the NFIP.

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612) and section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121, 110 Stat. 847, 858-9 (Mar. 29, 1996) (5 U.S.C. 601 note), require that special consideration be given to the effects of regulations on small entities. The RFA applies only when an agency is “required by section 553 . . . to publish general notice of proposed rulemaking for any proposed rule.” 5 U.S.C. 603(a). An RFA analysis is not required for this rulemaking because the Regulatory Flexibility Act is inapplicable to final rules issued pursuant to an exemption from notice and comment. FEMA issues the NFIP Installment Plans rulemaking pursuant to the 5 U.S.C. 553(a)(2), for all rules relating to “public property, loans, grants, benefits or contracts,” as well as 5 U.S.C. 553(b)(3)(B), which provides that, when an agency for good cause finds that public notice and comment procedures are impracticable, unnecessary, or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment.

The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 658, 1501-1504, 1531-1536, 1571, pertains to any rulemaking which is likely to result in the promulgation of any rule that includes a Federal mandate that may result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million (adjusted annually for inflation) or more in any one year. If the rulemaking includes a Federal mandate, the Act requires an agency to prepare an assessment of the anticipated costs and benefits of the Federal mandate. The Act also pertains to any regulatory requirements that might significantly or uniquely affect small governments. Before establishing any such requirements, an agency must develop a plan allowing for input from the affected governments regarding the requirements.

FEMA has determined that this rulemaking will not result in the expenditure by State, local, and Tribal governments, in the aggregate, nor by the private sector, of $100,000,000 or more in any one year as a result of a Federal mandate, and it will not significantly or uniquely affect small governments. Therefore, no actions are deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995 (UMRA).

Additionally, regulations are only reviewable under UMRA when an agency has published a notice of proposed rulemaking as defined by 5 U.S.C. 553(b). See 2 U.S.C. 658(10); 5 U.S.C. 601(2). FEMA is not required to publish a notice of proposed rulemaking; thus, this rule is exempt from UMRA's requirements pertaining to the preparation of a written statement.

Section 102 of the National Environmental Policy Act of 1969 (NEPA), Public Law 91-190, 83 Stat. 852 (Jan. 1, 1970) (42 U.S.C. 4321 et seq. ), as amended, requires Federal agencies to evaluate the impacts of a proposed major Federal action that significantly affect the quality of the human environment, consider alternatives to the proposed action, provide public notice and opportunity to comment, and properly document its analysis. DHS and its component agencies analyze proposed actions to determine whether NEPA applies to those actions and, if so, what level of documentation and analysis is required. 40 CFR 1501.3.

DHS Directive 023-01, Rev. 01 and DHS Instruction Manual 023-01-001-01, Rev. 01 (Instruction Manual) establish the policies and procedures DHS and its component agencies use to comply with NEPA and the Council on Environmental Quality (CEQ) regulations for implementing the procedural requirements of NEPA codified at 40 CFR parts 1500 through 1508. The CEQ regulations allow Federal agencies to establish, in their NEPA implementing procedures, with CEQ review and concurrence, categories of actions (“categorical exclusions” or “Catex”) that experience has shown normally do not, individually or in the aggregate, have a significant effect on the human environment and, therefore, do not require preparation of an environmental assessment or environmental impact statement. 40 CFR 1501.4, 1507.3(c)(8), 1508.1(e). DHS Instruction Manual, Appendix A, lists the categorical exclusions established by DHS in conformity with CEQ's regulations. Under DHS NEPA implementing procedures, for an action to be categorically excluded it must satisfy each of the following conditions: (1) the entire action clearly fits within one or more of the categorical exclusions; (2) the action is not a piece of a larger action; and (3) no extraordinary circumstances exist that create the potential for a significant environmental effect. Instruction Manual, section V.B. (2) (a-c).

This rulemaking is a major Federal action subject to NEPA. Under DHS Instruction Manual 023-01-001-01, Appendix A, DHS has established that certain categories of rulemaking, to include (1) the promulgation of rules that are of a strictly administrative or procedural nature and (2) rules that implement, without substantive change, statutory or regulatory requirements, meet the criteria for categorical exclusion and therefore do not require preparation of an environmental assessment or environmental impact statement. (Catex A3(a) and (b)). This rulemaking satisfies the conditions for categorical exclusion established under DHS Instruction Manual, section V.B.(2) and Appendix A because: (1) the final rule is both strictly administrative in nature and is intended only to implement, without substantive change, the statutory requirement that FEMA offer policyholders the option of paying their annual flood insurance premiums in monthly installments; (2) the impact of the final rule affects only payment schedules available under the NFIP and is not part of a larger action that would impact other FEMA programs; and (3) the final rule will not result in any extraordinary circumstances that would make application of a categorical exclusion inappropriate or trigger the need for additional analysis. See DHS Instruction Manual 023-01-001-01 V(B)(2). FEMA has therefore determined that this rulemaking is categorically excluded under both Catex A3(a) and (b) of DHS Instruction Manual 023-01-001-01, Appendix A and no further NEPA analysis or documentation is required.

Under the Privacy Act of 1974, 5 U.S.C. 552a, an agency must determine whether implementation of a proposed regulation will result in a system of records. A “record” is any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his/her education, financial transactions, medical history, and criminal or employment history and that contains his/her name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph. 5 U.S.C. 552a(a)(4). A “system of records” is a group of records under the control of an agency from which information is retrieved by the name of the individual or by some identifying number, symbols, or other identifying particular assigned to the individual. An agency cannot disclose any record that is contained in a system of records except by following specific procedures. The E-Government Act of 2002, 44 U.S.C. 3501 note, also requires specific procedures when an agency takes action to develop or procure information technology that collects, maintains, or disseminates information that is in an identifiable form. This Act also applies when an agency initiates a new collection of information that will be collected, maintained, or disseminated using information technology if it includes any information in an identifiable form permitting the physical or online contacting of a specific individual.

In accordance with DHS policy, FEMA has completed a Privacy Threshold Analysis (PTA) for this rule. DHS/FEMA has determined that this rulemaking does not affect the 1660-0006 OMB Control Number's current compliance with the E-Government Act of 2002 or the Privacy Act of 1974, as amended. As a result, DHS/FEMA has concluded that the 1660-0006 OMB Control Number is covered by the DHS/FEMA/PIA-011—National Flood Insurance Program Information Technology Systems (NFIP ITS) Privacy Impact Assessment (PIA). Additionally, DHS/FEMA has decided that the 1660-0006 OMB Control Number is covered by the DHS/FEMA-003 National Flood Insurance Program Files, 79 FR 28747, May 19, 2014, System of Records Notice.

Under the Paperwork Reduction Act of 1995 (PRA), as amended, 44 U.S.C. 3501-3520, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the agency obtains approval from OMB for the collection and the collection displays a valid OMB control number. See 44 U.S.C. 3506,3507. This rulemaking does not call for a new collection of information under the PRA. There is an existing collection of information, 1660-0006, the NFIP Policy Forms, Public Law 90-448 (1968) (expanded by Pub. L. 93-234 (1973)), included in this rulemaking. BW-12 and HFIAA required modifications to the NFIP. Program changes resulting from BW-12 and HFIAA necessitated revision of the NFIP Policy Forms to assure proper classification of properties for rating purposes and to rate and issue the policies in accordance with the provisions of BW-12 and HFIAA. However, this rule will not impact this collection because the forms have already been updated as needed.

Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments,” 65 FR 67249 (Nov. 9, 2000), applies to agency regulations that have Tribal implications, that is, regulations that 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. Under this Executive order, to the extent practicable and permitted by law, no agency shall promulgate any regulation that has Tribal implications, that imposes substantial direct compliance costs on Indian Tribal governments, and that is not required by statute, unless funds necessary to pay the direct costs incurred by the Indian Tribal government in complying with the regulation are provided by the Federal Government or the agency consults with Tribal officials. Nor, to the extent practicable by law, may an agency promulgate a regulation that has Tribal implications and preempts Tribal law, unless the agency consults with Tribal officials. This rule involves no policies that have Tribal implications under Executive Order 13175.

The purpose of this rulemaking is to implement the statutory requirement that FEMA offer policyholders the option of paying their flood insurance premiums in installments. FEMA lacks discretion to change course based on public comment which applies to comments from Indian Tribal governments. Further, the benefits anticipated for the general public are similarly shared amongst Indian Tribal Governments. Allowing Tribal Nation citizen policyholders to pay in smaller installments reduces barriers to entry in the flood insurance marketplace. The ability to pay in installments may also result in more Tribal Nation citizen policyholders retaining their flood insurance protection.

Under the NFIP's current annual premium payment requirement, a Tribal Nation citizen policyholder who is making annual payments typically only interacts with their flood insurance coverage at the time of initial purchase or renewal. Additionally, the Tribal Nation citizen policyholder must consider the full cost of flood insurance all at once, creating a different trade-off dynamic than when the cost is spread out. Facing a one-time annual payment, the policyholder may rationalize a decision to not renew on grounds that they perceive their risk to be low or that they will instead save the money spent on premium to self-fund repairs. In contrast, Tribal Nation citizen policyholders who make more frequent flood insurance payments will have an ongoing relationship with their insurer and a consistent reminder that they are protected against flood, and may be more aware of flood alerts, news about flooding, and more accurately perceive their risk.

This rulemaking would benefit Indian Tribal governments subject to the NFIP, offering existing Tribal Nation citizen policyholders the option of paying their premiums in monthly installments rather than in one annual lump sum. The rulemaking would not have substantial negative direct effects on citizens of Tribal Nations, on the relationship between the Federal Government and Indian Tribes, or the distribution of power and responsibilities between the Federal Government and Indian Tribes.

Executive Order 13132, “Federalism,” 64 FR 43255 (Aug. 10, 1999), sets forth principles and criteria that agencies must adhere to in formulating and implementing policies that have federalism implications, that is, regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” For the purposes of this Executive order, the term States also includes local governments or other subdivisions established by the States. Under this Executive order, Federal agencies must closely examine the statutory authority supporting any action that would limit the policymaking discretion of the States. Further, to the extent practicable and permitted by law, no agency shall promulgate any regulation that has federalism implications, that imposes substantial direct compliance costs on State and local governments, and that is not required by statute, unless the Federal Government provides funds necessary to pay the direct costs incurred by the State and local governments in complying with the regulation, or the agency consults with State and local officials. Nor, to the extent practicable by law, may an agency promulgate a regulation that has federalism implications and preempts State law, unless the agency consults with State and local officials.

FEMA has reviewed this rule under Executive Order 13132 and has determined that it 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, and therefore does not have federalism implications as defined by the Executive order. This rulemaking implements the statutory requirement that FEMA offer policyholders the option of paying their annual flood insurance premiums in monthly installments. As such, it would not have substantial direct effects on the States or participating communities, on the relationship between the National Government and the States or participating communities, or the distribution of power among the various levels of government.

Executive Order 11988, 42 FR 26951 (May 25, 1977), as amended by Executive Order 13690, “Establishing a Federal Flood Risk Management Standard (FFRMS) and a Process for Further Soliciting and Considering Stakeholder Input,” 80 FR 6425 (Feb. 4, 2015), and Executive Order 14030, “Climate-Related Financial Risk,” 86 FR 27967 (May 25, 2021), requires each Federal agency to provide leadership and take action to reduce the risk of flood loss, to minimize the impact of floods on human safety, health and welfare, and to restore and preserve the natural and beneficial values served by floodplains in carrying out its responsibilities for (1) acquiring, managing, and disposing of Federal lands and facilities; (2) providing federally undertaken, financed, or assisted construction and improvements; and (3) conducting Federal activities and programs affecting land use, including but not limited to water and related land resources planning, regulating, and licensing activities. In carrying out these responsibilities, each agency must evaluate the potential effects of any actions it may take in a floodplain; ensure that its planning programs and budget requests reflect consideration of flood hazards and floodplain management; and prescribe procedures to implement the policies and requirements of the Executive order.

Before promulgating any regulation, an agency must determine whether the proposed regulations will affect a floodplain(s), and if so, the agency must consider alternatives to avoid adverse effects and incompatible development in the floodplain(s). If the head of the agency finds that the only practicable alternative consistent with the law and with the policy set forth in Executive Order 11988 is to promulgate a regulation that affects a floodplain(s), the agency must, prior to promulgating the regulation, design or modify the regulation to minimize potential harm to or within the floodplain, consistent with the agency's floodplain management regulations. It must also prepare and circulate a notice containing an explanation of why the action is proposed to be located in the floodplain.

FEMA regulations at 44 CFR part 9 implement E.O.s 11988 and 13690 by establishing an 8-step decision-making process for actions which have the potential to affect floodplains or their occupants, or which are subject to potential harm by location in floodplains. Under 44 CFR 9.5, actions affecting floodplains include actions which have the potential to result in the long- or short-term impacts associated with: (1) the occupancy or modification of floodplains, and the direct or indirect support of floodplain development; or (2) the destruction and modification of wetlands and the direct or indirect support of new construction in wetlands. Pursuant to 44 CFR 9.5(f), FEMA generally must apply the 8-step process for program-wide actions under the NFIP such as regulations, procedures, or other issuances making or amending program policy. This rulemaking implements the statutory requirement under the NFIP that FEMA offer policyholders the option of paying their annual flood insurance premiums in monthly installments. FEMA has determined that the changes in this rule do not meet the definition of an action as outlined in 44 CFR 9.4 and the rulemaking therefore does not trigger the requirements of 44 CFR part 9 as described in 44 CFR 9.5, including those outlined in 44 CFR 9.5(f).

Executive Order 11990, “Protection of Wetlands,” 42 FR 26961 (May 24, 1977), sets forth that each agency must provide leadership and take action to minimize the destruction, loss or degradation of wetlands, and to preserve and enhance the natural and beneficial values of wetlands in carrying out the agency's responsibilities. These responsibilities include (1) acquiring, managing, and disposing of Federal lands and facilities; and (2) providing federally undertaken, financed, or assisted construction and improvements; and (3) conducting Federal activities and programs affecting land use, including but not limited to water and related land resources planning, regulating, and licensing activities. Each agency, to the extent permitted by law, must avoid undertaking or providing assistance for new construction located in wetlands unless the head of the agency finds (1) that there is no practicable alternative to such construction, and (2) that the proposed action includes all practicable measures to minimize harm to wetlands which may result from such use. In making this finding, the head of the agency may take into account economic, environmental, and other pertinent factors.

In carrying out the activities described in Executive Order 11990, each agency must consider factors relevant to a proposal's effect on the survival and quality of the wetlands. These include public health, safety, and welfare, including water supply, quality, recharge and discharge; pollution; flood and storm hazards; sediment and erosion; maintenance of natural systems, including conservation and long-term productivity of existing flora and fauna, species and habitat diversity and stability, hydrologic utility, fish, wildlife, timber, and food and fiber resources. They also include other uses of wetlands in the public interest, including recreational, scientific, and cultural uses.

This rulemaking implements the statutory requirement that FEMA offer policyholders the option of paying their annual flood insurance premiums in monthly installments. FEMA has determined that the changes in this rule do not meet the definition of an action as outlined in 44 CFR 9.4 and the rulemaking therefore does not trigger the requirements of 44 CFR part 9 as described in 44 CFR 9.5, including those outlined in 44 CFR 9.5(f).

Under Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,” 59 FR 7629 (Feb. 16, 1994), as amended by Executive Order 12948, 60 FR 6381 (Feb. 1, 1995), FEMA incorporates environmental justice into its policies and programs. The Executive order requires each Federal agency to identify and address disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations.

This rulemaking will not have a disproportionately high or adverse human health or environmental effect on low-income or minority populations.

Before a rule can take effect, the Congressional Review of Agency Rulemaking Act (CRA), 5 U.S.C. 801-808, requires the Federal agency promulgating the rule to submit to Congress and to the Government Accountability Office (GAO) a copy of the rule, a concise general statement relating to the rule, including whether it is a major rule, the proposed effective date of the rule, a copy of any cost-benefit analysis, descriptions of the agency's actions under the Regulatory Flexibility Act and the Unfunded Mandates Reform Act, and any other information or statements required by relevant Executive orders.

FEMA will send this rule to the Congress and to GAO pursuant to the CRA. This rule is not a “major rule” within the meaning of the CRA. It will not have an annual effect on the economy of $100,000,000 or more or result in a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. Nor will it have 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.

For the reasons stated in the preamble, FEMA amends 44 CFR chapter I as follows:

In rule document 2024-23844 at 89 FR 84086, appearing on page 84086 in the Federal Register of Monday, October 21, 2024, in the third column, the DATES section is corrected to read as follows:

Effective date: November 20, 2024, except for amendment 3 (47 CFR 8.220(f)(14)) which is delayed indefinitely until the Office of Management and Budget has completed review under the Paperwork Reduction Act. The Commission will publish a document in the Federal Register announcing that effective date.

The Atlantic Surfclam and Ocean Quahog Fishery Management Plan (FMP) requires that NMFS issue notice in the Federal Register of the upcoming year's quota, even if the quota remains unchanged from the previous year. At its August 2024 meeting, the Mid-Atlantic Fishery Management Council (Council) recommended no change to the quota specifications for Atlantic surfclams and ocean quahogs for the 2025 fishing year. We are announcing 2025 quota levels of 3.4 million bushels (bu) (181 million L) for Atlantic surfclams, 5.36 million bu (285 million L) for ocean quahogs, and 100,000 Maine bu (3.52 million L) for Maine ocean quahogs. These quotas were published as projected 2025 limits in the Federal Register on May 13, 2021 (86 FR 26186). This rule establishes these quotas as unchanged from 2021 and final.

In addition, the regulations at 50 CFR 648.75(b)(3) allow the Regional Administrator to annually suspend the minimum size limit for Atlantic surfclams unless discard, catch, and biological sampling data indicate that 30 percent or more of the Atlantic surfclams have a shell length less than 4.75 inches (121 mm) and the overall reduced size is not attributable to harvest from beds where growth of the individual clams has been reduced because of density-dependent factors. The default minimum size limit is intended to prevent the fishery from harvesting too many small clams such that it could harm the overall population. The size limit is unnecessary if small clams are not a significant portion of overall catch. At its August 2024 meeting, the Council reviewed recent developments in the fishery and recommended the Regional Administrator once again suspend the minimum size limit for Atlantic surfclams for the 2025 fishing year. Commercial surfclam data for 2024 indicated that 8.4 percent of the overall commercial landings were composed of surfclams that were less than the 4.75-inch (121-mm) default minimum size.

Based on the information available, the Regional Administrator concurs with the Council's recommendation and is suspending the minimum size limit for Atlantic surfclams for the upcoming fishing year (January 1 through December 31, 2025).

NMFS is issuing this rule pursuant to section 305(d) of the Magnuson-Stevens Act. In a previous action taken pursuant to section 304(b), the FMP authorized NMFS to take this action pursuant to MSA section 305(d). See 50 CFR 648.72. The Assistant Administrator for Fisheries, NOAA, has determined that this rule is consistent with the Atlantic Surfclam and Ocean Quahog FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.

This action does not introduce any new reporting, recordkeeping, or other compliance requirements. This rule does not duplicate, overlap, or conflict with other Federal rules.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be unnecessary and contrary to the public interest. This rule is routine and formulaic. The public was given the opportunity to comment on the proposed rule for the 2021-2026 specifications (86 FR 9901, February 17, 2021), including the projected 2025 specifications, which remain unchanged. Delaying this action would prolong public uncertainty about the final quotas for the 2025 fishing year, and could delay issuance of 2025 Individual Transferable Quota cage tags to quota shareholders. The public and industry participants expect this action because we previously alerted the public that we would conduct this review in interim years of the multi-year specifications and announce the final quotas before or as close as possible to the January 1 start of the fishing year. This rule could not be published earlier because of the time necessary to collect data and conduct the analysis to support suspending the minimum size limit for Atlantic surfclams.

This rule is exempt from the requirements of Executive Order 12866 because it contains no implementing regulations.

Because prior notice and opportunity for public comment are not required for this rule by 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are inapplicable. Accordingly, no Regulatory Flexibility Analysis is required and none has been prepared.