The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2024-2142; Project Identifier AD-2024-00033-A” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may revise this proposal because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this NPRM.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Fred Caplan, Aviation Safety Engineer, FAA, 1701 Columbia Avenue, College Park, GA 30337. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The FAA issued an NPRM to amend 14 CFR part 39 by adding an AD that would supersede AD 2020-26-16, Amendment 39-21371 (86 FR 3769, January 15, 2021) (AD 2020-26-16), for certain Piper Model PA-28-151, PA-28-161, PA-28-181, PA-28-235, PA-28R-180, PA-28R-200, PA-28R-201, PA-28R-201T, PA-28RT-201, PA-28RT-201T, PA-32-260, PA-32-300, PA-32R-300, PA-32RT-300, and PA-32RT-300T airplanes. AD 2020-26-16 requires calculating the factored service hours (FSH) for each main wing spar to determine when an inspection is required, inspecting the lower main wing spar bolt holes for crack(s), and replacing any cracked main wing spar. Since the FAA issued AD 2020-26-16, the FAA evaluated the reports required by AD 2020-26-16 and determined that repetitive inspections of the lower main wing spar bolt holes for crack(s) and non-crack damage (including deep scratches, gouges, and thread marks) and replacement or modification of the main wing spar should be required, CSH should be used instead of FSH to determine times for required actions for each main wing spar, and that certain airplanes should be removed from the applicability and a new airplane model added to the applicability.

The NPRM published in the Federal Register on September 23, 2024 (89 FR 77457). In the NPRM, the FAA proposed to require calculating the CSH for each main wing spar; repetitively inspecting the lower main wing spar bolt holes for crack(s) and non-crack damage and taking corrective actions as needed; replacing or modifying main wing spars at a specified time; and reporting inspection results to Piper and the FAA if any cracks are found during any inspection. In the NPRM, the FAA also proposed to revise the applicability by removing certain airplanes and adding a new airplane model. The FAA is proposing this AD to detect and correct fatigue cracks in the lower main wing spar cap bolt holes. The unsafe condition, if not addressed, could result in a wing separating from the fuselage in flight.

Since issuance of the NPRM, the FAA received a request from Piper to extend the comment period. The commenter stated that the NPRM is complex and could drive substantial costs, among other things. In addition, the commenter stated that two significant hurricanes have prevented operators from performing a dedicated review of the NPRM. To be able to prepare informed and meaningful comments Piper requested an extension of 30 days to the comment period.

The FAA has determined that it is appropriate to extend the comment period for the NPRM to give all interested persons additional time to examine the proposed requirements and submit comments. The FAA has determined that extending the comment period an additional 30 days will not compromise the safety of the affected airplanes.

The FAA has reviewed the request for extension of the comment period for this notice. The commenter has shown a substantive interest in the proposed policy and good cause for the extension of the comment period. Therefore, in accordance with 14 CFR 11.47(c), the FAA has determined that an extension of the comment period for an additional 30 days to December 9, 2024, is consistent with the public interest, and that good cause exists for taking this action.

Accordingly, the comment period for Docket No. FAA-2024-2142 is extended until December 9, 2024.

Because no other portion of the proposal or other regulatory information has been changed, the entire proposal is not being republished.

Issued under authority provided by 49 U.S.C. 106(g), 40113, and 44701.

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2024-2421; Project Identifier MCAI-2024-00221-T” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to regulations.gov , including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this NPRM.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Dan Rodina, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 206-231-3225; email Dan.Rodina@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2024-0083, dated April 9, 2024 (EASA AD 2024-0083) (also referred to as the MCAI), to correct an unsafe condition for certain Airbus SAS Model A300-600 series airplanes; and Model A300 C4-620 airplanes. Model A300 C4-620 airplanes are not certificated by the FAA and are not included on the U.S. type certificate data sheet; this proposed AD therefore does not include those airplanes in the applicability. The MCAI states that new or more restrictive airworthiness limitations have been developed.

EASA AD 2024-0083 specifies that it requires a task (limitation) already in Airbus A300-600 Airworthiness Limitations Section (ALS) Part 2 Revision 4 that is required by EASA AD 2024-0009 (which corresponds to FAA AD 2024-16-02, Amendment 39-22808 (89 FR 75464, September 16, 2024) (AD 2024-16-02)), and that incorporation of EASA AD 2024-0083 invalidates (terminates) prior instructions for that task. This proposed AD therefore would terminate the limitations required by paragraph (dd) of AD 2024-16-02 for the tasks identified in the material referenced in EASA AD 2024-0083 only.

The FAA is proposing this AD to address fatigue cracking, damage, and corrosion in principal structural elements. You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2024-2421.

The FAA reviewed EASA AD 2024-0083, which specifies new airworthiness limitations for airplane structures and safe life limits. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would require revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations, which are specified in EASA AD 2024-0083 described previously, as incorporated by reference. Any differences with EASA AD 2024-0083 are identified as exceptions in the regulatory text of this proposed AD.

This proposed AD would require revisions to certain operator maintenance documents to include new actions ( e.g., inspections). Compliance with these actions is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by this proposed AD, the operator may not be able to accomplish the actions described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance (AMOC) according to paragraph (k)(1) of this proposed AD.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA proposes to incorporate EASA AD 2024-0083 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2024-0083 through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in EASA AD 2024-0083 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2024-0083. Material required by EASA AD 2024-0083 for compliance will be available at regulations.gov by searching for and locating Docket No. FAA-2024-2421 after the FAA final rule is published.

The FAA's process of incorporating by reference MCAI ADs as the primary source of information for compliance with corresponding FAA ADs has been limited to certain MCAI ADs (primarily those with service bulletins as the primary source of information for accomplishing the actions required by the FAA AD). However, the FAA is now expanding the process to include MCAI ADs that require a change to airworthiness limitation documents, such as airworthiness limitation sections.

For these ADs that incorporate by reference an MCAI AD that changes airworthiness limitations, the FAA requirements are unchanged. Operators must revise the existing maintenance or inspection program, as applicable, to incorporate the information specified in the new airworthiness limitation document. The airworthiness limitations must be followed according to 14 CFR 91.403(c) and 91.409(e).

The previous format of the airworthiness limitation ADs included a paragraph that specified that no alternative actions ( e.g., inspections) or intervals may be used unless the actions and intervals are approved as an AMOC in accordance with the procedures specified in the AMOC paragraph under “Additional AD Provisions.” This new format includes a “Provisions for Alternative Actions and Intervals” paragraph that does not specifically refer to AMOCs, but operators may still request an AMOC to use an alternative action or interval.

The FAA estimates that this AD, if adopted as proposed, would affect 128 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

The FAA has determined that revising the existing maintenance or inspection program takes an average of 90 work-hours per operator, although the agency recognizes that this number may vary from operator to operator. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), the FAA has determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, the agency estimates the average total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).

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

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

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

For the reasons discussed above, I certify this proposed regulation:

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

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

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

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

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

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should submit only one time if comments are filed electronically, or commenters should send only one copy of written comments if comments are filed in writing.

The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The FAA may change this proposal in light of the comments it receives.

Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edits, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

An electronic copy of this document may be downloaded through the internet at www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Operations office (see ADDRESSES section for address, phone number, and hours of operations). An informal docket may also be examined during regular business hours at the office of the Eastern Service Center, Federal Aviation Administration, Room 210, 1701 Columbia Ave., College Park, GA 30337.

Class E airspace designations are published in Paragraph 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document proposes to amend the current version of that order, FAA Order JO 7400.11J, Airspace Designations and Reporting Points, dated July 31, 2024, and effective September 15, 2024. These updates will be published in the next update to FAA Order JO 7400.11. FAA Order JO 7400.11J is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11J lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA proposes an amendment to 14 CFR part 71 to amend Class E airspace by adding airspace extending upward from 700 feet above the surface within a 6-mile radius of the Lenoir Memorial Hospital Heliport, Kinston, NC. This action also proposes to correct the coordinates for Kinston Regional Jetport at Stallings Field, Kinston, NC. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations in the area.

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

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” prior to any final regulatory action by the FAA.

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

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

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should submit only one time if comments are filed electronically, or commenters should send only one copy of written comments if comments are filed in writing.

The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The FAA may change this proposal in light of the comments it receives.

Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

An electronic copy of this document may be downloaded through the internet at www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Operations office (see ADDRESSES section for address, phone number, and hours of operations). An informal docket may also be examined during normal business hours at the office of the Operations Support Group, Central Service Center, Federal Aviation Administration, 10101 Hillwood Parkway, Fort Worth, TX 76177.

United States Area Navigation Routes are published in paragraph 2006 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document proposes to amend the current version of that order, FAA Order JO 7400.11J, dated July 31, 2024, and effective September 15, 2024. These updates would be published in the next update to FAA Order JO 7400.11. That order is publicly available as listed in the ADDRESSES section of this document.

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

During the spring and summer months each year, the FAA experiences severe dry-line thunderstorm weather activity across central Arizona and New Mexico, and western Texas that impact air traffic operations transiting that area. When the severe weather activity events occur, the Albuquerque Air Route Traffic Control Center (ARTCC) issues radar vectors to affected aircraft to minimize the operational impact to the operators and to the NAS as a whole.

To further mitigate severe weather-related impacts for aircraft operations flying through the southwest United States during the spring and summer months, the FAA is proposing to establish two new RNAV routes, Q-162 and Q-166, within Albuquerque ARTCC airspace. The proposed Q-162 route would transition west to east across the northern portion of Albuquerque ARTCC's airspace and the proposed Q-166 route would transition west to east across the southern portion of Albuquerque ARTCC's airspace. Instrument flight rules pilots with RNAV-equipped aircraft would be able to navigate north or south of the severe weather events and affected areas without further contributing to air traffic control (ATC) workload associated with sequencing and separating affected aircraft via radar vectors around the severe weather events and affected areas.

Having experienced a 24 percent increase of enroute air traffic through Albuquerque ARTCC's airspace in the last 10 years, the proposed routes would support the increased enroute operations and establish much-needed published holding information that would increase safety for both pilots and controllers by reducing phraseology/frequency congestion and depicting predictable holding locations during days that require restraints as a result of system overload due to a high volume of traffic. Moreover, the proposed Q-routes would add structure for overflight air traffic in concert with new Phoenix Terminal Radar Approach Control (TRACON) and Tucson TRACON procedures when the traditional route structure is inadequate.

The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 to establish RNAV routes Q-162 and Q-166 in the southwest United States. The proposed new RNAV Q-routes are described below.

Q-162: Q-162 is a proposed new route that would extend between the HAHAA, AZ, Waypoint (WP), located approximately 20 nautical miles (NM) northwest of the Flagstaff, AZ, Very High Frequency Omnidirectional Range (VOR)/Distance Measuring Equipment (VOR/DME) and the AGGIY, TX, WP, located approximately 36 NM northeast of the Panhandle, TX, VOR/Tactical Air Navigation (VORTAC). This Q-route would provide a routing alternative along the northern portion of Albuquerque ARTCC airspace between the Flagstaff, AZ, area and the Borger, TX, area when severe weather events impact the high altitude enroute structure through central Arizona and New Mexico, and western Texas.

Q-166: Q-166 is a proposed new route that would extend between the MOHAK, AZ, Fix, located approximately 32 NM east of the Bard, CA, VORTAC and the MRTHN, TX, WP, located approximately 55 NM southeast of the Fort Stockton, TX, VORTAC. This Q-route would also provide a routing alternative along the southern portion of Albuquerque ARTCC airspace between the Wellton, AZ, area and the Longfellow, TX, area when severe weather events impact the high altitude enroute structure through central Arizona and New Mexico, and western Texas.

This proposal to establish RNAV routes Q-162 and Q-166 would reduce air traffic control (ATC) sector workload and complexity, reduce pilot-to-controller communication requirements, and increase NAS safety and capacity in areas effected by severe weather events in the southwest United States. These new RNAV Q-routes would also assist ATC when non-radar procedures are required and provide additional RNAV enroute structure supporting the FAA's NextGen efforts to make flying safer, more efficient, and more predictable within the NAS.

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

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

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

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

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should submit only one time if comments are filed electronically, or commenters should send only one copy of written comments if comments are filed in writing.

The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The FAA may change this proposal in light of the comments it receives.

Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edits, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

An electronic copy of this document may be downloaded through the internet at www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Operations office (see ADDRESSES section for address, phone number, and hours of operations). An informal docket may also be examined during regular business hours at the office of the Eastern Service Center, Federal Aviation Administration, Room 210, 1701 Columbia Ave., College Park, GA 30337.

Class E airspace designations are published in Paragraph 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document proposes to amend the current version of that order, FAA Order JO 7400.11J, Airspace Designations and Reporting Points, dated July 31, 2024, and effective September 15, 2024. These updates will be published in the next update to FAA Order JO 7400.11. FAA Order JO 7400.11J is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11J lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA proposes an amendment to 14 CFR part 71 to amend Class E airspace extending upward from 700 feet above the surface by adding airspace within a 6-mile radius of the ECU Health Chowan Hospital Heliport, Edenton, NC. Additionally, it would correct the Northeastern Regional Airport name and coordinates for Northeastern Regional Airport (formerly Edenton Municipal Airport). Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations in the area.

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

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” prior to any final regulatory action by the FAA.

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

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

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should submit only one time if comments are filed electronically, or commenters should send only one copy of written comments if comments are filed in writing.

The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The FAA may change this proposal in light of the comments it receives.

Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

An electronic copy of this document may be downloaded through the internet at www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Operations office (see ADDRESSES section for address, phone number, and hours of operations). An informal docket may also be examined during normal business hours at the Northwest Mountain Regional Office of the Federal Aviation Administration, Air Traffic Organization, Western Service Center, Operations Support Group, 2200 S. 216th Street, Des Moines, WA 98198.

Class E6 airspace designations are published in paragraph 6006, of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document proposes to amend the current version of that order, FAA Order JO 7400.11J, dated July 31, 2024, and effective September 15, 2024. These updates would be published in the next update to FAA Order JO 7400.11. That order is publicly available as listed in the ADDRESSES section of this document.

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

Alaska has 103 different Class E 1,200 feet airspace areas that are primarily used for low level IFR en route operations. Alaska currently has a Class E airspace extending upward from 1,200 feet above the surface, which is designated as the northeast en route domestic airspace. The Alaska en route domestic airspace is inadequately sized. This modification to the northeast en route domestic airspace will expand the coverage of controlled airspace, eliminating Class G airspace extending upward from 1,200 ft above the surface.

The FAA is proposing an amendment to 14 CFR part 71 that would modify Class E airspace beginning at 1,200 feet above the surface over the mainland of Alaska to provide continuous controlled airspace from 1,200 feet above the surface until reaching the base of adjacent controlled airspace. The proposed airspace would cover most of Alaska's mainland and would provide adequate coverage of controlled airspace for aircraft conducting IFR operations.

In addition, the FAA proposes an administrative modification that updates the airspace name.

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

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, prior to any FAA final regulatory action.

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

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

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should submit only one time if comments are filed electronically, or commenters should send only one copy of written comments if comments are filed in writing.

The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The FAA may change this proposal in light of the comments it receives.

Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edits, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

An electronic copy of this document may be downloaded through the internet at www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Operations office (see ADDRESSES section for address, phone number, and hours of operations). An informal docket may also be examined during regular business hours at the office of the Eastern Service Center, Federal Aviation Administration, Room 210, 1701 Columbia Ave., College Park, GA 30337.

Class E airspace designations are published in Paragraph 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document proposes to amend the current version of that order, FAA Order JO 7400.11J, Airspace Designations and Reporting Points, dated July 31, 2024, and effective September 15, 2024. These updates will be published in the next update to FAA Order JO 7400.11. FAA Order JO 7400.11J is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11J lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA proposes an amendment to 14 CFR part 71 to establish Class E airspace extending upward from 700 feet above the surface within a 6-mile radius of ECU Health Bertie Hospital Heliport, Windsor, NC. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations in the area.

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

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” prior to any final regulatory action by the FAA.

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

Invitation to Comment: We invite you to submit comments regarding the proposed priority. To ensure that your comments have maximum effect in developing the final priority, we urge you to identify clearly the specific section of the proposed priority that each comment addresses.

We invite you to assist us in complying with the specific requirements of Executive Orders 12866, 13563, and 14094 and their overall requirement of reducing regulatory burden that might result from the proposed priority. Please let us know of any further ways we could reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the program.

During and after the comment period, you may inspect public comments about the proposed priority by accessing Regulations.gov . To inspect comments in person, please contact the person listed under FOR FURTHER INFORMATION CONTACT .

Assistance to Individuals With Disabilities in Reviewing the Rulemaking Record: On request, we will provide an appropriate accommodation or auxiliary aid to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for the proposed priority. If you want to schedule an appointment for this type of accommodation or auxiliary aid, please contact the person listed under FOR FURTHER INFORMATION CONTACT .

Purpose of Program: The purpose of the Technical Assistance on State Data Collection program is to improve the capacity of States to meet IDEA data collection and reporting requirements. Funding for the program is authorized under section 611(c)(1) of IDEA, which gives the Secretary the authority to reserve not more than one-half of one percent of the amounts appropriated under Part B for each fiscal year to provide TA activities authorized under section 616(i), where needed, to improve the capacity of States to meet the data collection and reporting requirements under Parts B and C of IDEA. The maximum amount the Secretary may reserve under this set-aside for any fiscal year is $25,000,000, cumulatively adjusted by the rate of inflation. Section 616(i) of IDEA requires the Secretary to review the data collection and analysis capacity of States to ensure that data and information determined necessary for implementation of sections 616 and 642 of IDEA are collected, analyzed, and accurately reported to the Secretary. It also requires the Secretary to provide TA, where needed, to improve the capacity of States to meet the data collection requirements, which include the data collection and reporting requirements in sections 616 and 618 of IDEA. In addition, the Further Consolidated Appropriations Act, 2024, Public Law 118-47, gives the Secretary authority to use funds reserved under section 611(c) of IDEA to “administer and carry out other services and activities to improve data collection, coordination, quality, and use under Parts B and C of the IDEA.” Further Consolidated Appropriations Act, 2024, Public Law 118-47, Division D, Title III, 138 Stat. 460, 685 (2024).

Assistance Listing Number: 84.373M.

Program Authority: 20 U.S.C. 1411(c), 1416(i), 1418(c), 1418(d), 1442; Further Consolidated Appropriations Act, 2024, Public Law 118-47, Division D, Title III, 138 Stat. 460, 685 (2024).

Applicable Program Regulations: 34 CFR 300.702.

Proposed Priority:

This document contains one proposed priority.

IDEA Data Management Center.

Background:

The purpose of this proposed priority is to establish a TA center to provide TA to improve States' capacity to collect, report, analyze, and use high-quality IDEA Part B and Part C data (including data reported under IDEA sections 616, 618, and 642) by enhancing, streamlining, and integrating IDEA Part B data into their SLDS and IDEA Part C data and IDEA Part B, preschool special education data into their ECIDS. The Data Management Center's work and TA will identify applicable requirements for, and reflect compliance with, the privacy and confidentiality protections under Parts B and C of the IDEA and the Family Educational Rights and Privacy Act (FERPA). The Data Management Center will not provide the Department with access to child-level data and will further ensure that such data is de-identified, as defined in 34 CFR 99.31(b)(1).

Integrating SLDS with IDEA Part B data is a complex issue. While a majority of States have an SLDS, until recently very few of those systems integrated IDEA Part B data. Specifically, in the IDEA State Supplemental Survey in school year (SY) 2015-16, only 18 of 60 (30 percent) Part B reporting entities responded that all their special education data was in their SLDS. However, in the 2022 survey data reported to the National Center for Education Statistics through the SLDS State Data Capacity Survey, 1 40 (71 percent) respondents indicated that they now connect Part B data to kindergarten-12 data in the SLDS. An additional three (5.4 percent) report that it is in progress and five (8.9 percent) report that it is planned.

Integrating IDEA Part B data into their SLDS adds value. 2 It allows States to standardize data collected across programs, meet Federal reporting requirements, provide additional information on the participation in other programs by children with disabilities, and support program improvement.

Currently, most children with disabilities are educated in the same settings as children without disabilities;  3 however, the majority of States continue to separate disability and special education related data from other data collected on students ( e.g., demographics, assessment data). Some States are using separate data collections to meet the reporting requirements under sections 616 and 618 of IDEA ( e.g., discipline, assessment, educational environments) rather than including all data elements needed for Federal reporting in their SLDS. Through interactions with States and TA providers around data quality needs and challenges, the Department has found that programs, districts, and State educational agencies (SEAs) are using different collection processes to gather data for their required data submissions, resulting in different degrees of reliability in the data collected.

States with fragmented data systems are more likely to have missing or duplicate data. For example, if a State collects and maintains data on disciplinary removals of children with disabilities in a special education data system but maintains data on the demographics of all children in another data system, the State may not be able to accurately match all data on disciplinary removals with the demographic data needed to meet IDEA Part B data collection and reporting requirements. Since discipline data is used to examine issues related to disproportionality affecting children with disabilities, inaccurate data or incomplete data will impact States' ability to use the data to make appropriate programmatic changes aimed at addressing exclusionary practices within educational settings.

In addition, States with fragmented data systems often lack the capacity to cross-validate related data elements. For example, if the data on the type of statewide assessment in which children with disabilities participate is housed in one database and the grade in which children are enrolled is housed in another, the State may not be able to accurately match the assessment data to the grade-level data to meet the Federal reporting requirements, including IDEA Part B reporting requirements under sections 616 and 618 of IDEA. The inability to match children with disabilities who participated in statewide assessments with the appropriate grades may result in these children with disabilities not being included in the accountability system and improvement activities may not take these children with disabilities into consideration.

Fragmented data systems and variations in how programs or districts are operationalizing the reporting instructions and definitions hinder States' capacity both to collect and report valid and reliable data on children with disabilities to the Secretary and to the public, which is specifically required by IDEA sections 616(b)(2)(B)(i), 616(b)(2)(C)(ii), and 618(a), and to meet IDEA Part B data collection and reporting requirements under sections 616 and 618 of IDEA. Valid and reliable data on children with disabilities is crucial for effective program planning and evaluation. It allows key parties to make informed decisions, allocate resources effectively, and tailor interventions to meet the specific needs of students, ultimately leading to improved outcomes.

States have expressed greater desire for TA from the currently funded Data Management Center to establish or improve their SLDS, exceeding the Center's capacity to serve all of them. Although focused TA has been provided to 23 targeted States, 28 more await targeted TA to integrate their IDEA Part B data with their SLDS.

Similarly, improvements are necessary in States' management, collection, coordination, reporting, and integration of Part C and Part B preschool special education data so that high-quality IDEA Part C and Part B preschool special education data required under sections 618 and 616 of IDEA are reported to the Department. Beginning with the 2023-24 Part C Exiting data, States will be required to submit all IDEA section 618 Part C data collections through a new submission system (EDPass). In previous years, States have submitted these data through the ED Facts Metadata and Process system, which provides onscreen data entry tables and fields for reporting the IDEA section 618 data. The EDPass system will require States to build data files based on new file specifications and upload those files to EDPass. Once uploaded, the State will be required to respond to a series of data quality checks to ensure the quality of their Part C data being submitted to the Department.

As the process to submit the IDEA Part C data has evolved and increased in complexity due to the move to EDPass, more efficient, effective, and user-friendly approaches are necessary for conducting the early childhood IDEA data collection, reporting, and submission processes. Improved data management and coordination processes, as well as the increase of linked and integrated child-level data in IDEA Part C data systems, IDEA Part B preschool special education data systems, early care and education program data systems, and SLDS for school-aged children, are key approaches for States in meeting these increased expectations around Part C data and Part B section 619 data being submitted via EDPass.

States are strongly encouraged to establish and implement effective early childhood data management and, where appropriate, data system coordination and integration policies and procedures to support program improvement, compliance accountability, and Federal and public reporting. Developing interagency agreements and revising policies and procedures (that all meet applicable Federal privacy requirements) would allow States, where appropriate, to coordinate, link, or integrate child-level data in IDEA Part C data systems and IDEA Part B preschool special education data systems as an important first step, and also potentially with other early care and education program data. An ECIDS could help States identify what works best to improve outcomes for young children in their States. For instance, an ECIDS can provide States with information needed to assess the characteristics of services that may be related to better outcomes for children and families or the relationship between early childhood settings and early childhood outcomes. An ECIDS that includes data across various early care and education programs could also improve child find activities in the State by identifying potentially underserved populations as well as strong referral sources and those where more outreach may be needed. An ECIDS could also help States determine the other early care and education programs that serve young children with disabilities and their families, allowing States to coordinate better with such programs and operate early intervention or preschool special education programs with a focus on improving outcomes. For example, States are working to link their universal screening data to SLDS and ECIDS in order to increase early childhood developmental screening rates for young children.

Building robust ECIDSs that include Part C early intervention data and Part B preschool special education data would help improve IDEA child find and transition data collection, reporting, and analysis, improve responses to critical policy questions, facilitate program improvement, and improve compliance for IDEA Part C early intervention and IDEA Part B preschool special education programs. This level of coordination and integration would help ensure that States report high-quality IDEA data to the Department and the public.

Though some improvements have been made over the last 10 years in linking and integrating IDEA Part C early intervention and IDEA Part B preschool special education data to data from early care and education programs, K-12 data systems, and the workforce, as well as longitudinally over time, the percentage of State programs that report they can make these linkages remains low. Less than 40 percent of IDEA Part C early intervention and IDEA Part B preschool special education programs that responded to a survey  4 in 2021 reported they can link their child-level data to their workforce data. Less than 30 percent of IDEA Part C early intervention programs that responded reported that their State links IDEA Part C child-level data to Early Head Start, Head Start, State Pre-K, child care programs, home visiting programs, or other early care or education programs. Most IDEA Part C early intervention programs that responded reported they have never linked their IDEA Part C data to their IDEA Part B preschool special education data. Reasons vary, but the most common reasons include budgetary constraints and competing staffing priorities.

This proposed priority would directly address these capacity-related challenges, as well as increased expectations and other capacity challenges IDEA Part C early intervention and IDEA Part B preschool special education programs face with respect to effectively and efficiently collecting, reporting, analyzing, and using high-quality IDEA data to improve the capacity of States to meet the data collection and reporting requirements under Parts B and C of IDEA.

Proposed Priority:

The purpose of this proposed priority is to fund a cooperative agreement to establish and operate an IDEA Data Management Center (Data Management Center). The Data Management Center will respond to State needs as States determine whether and how to coordinate and integrate their IDEA Part B and Part C data required to meet the data collection requirements in sections 616 and 618 of IDEA into their longitudinal data systems (including SLDS and ECIDS) while ensuring applicable IDEA and FERPA privacy protections are met. This integration will improve the capacity of States to collect, report, analyze, and use high-quality IDEA Part B and Part C data to establish and meet high expectations for each child with a disability. The Data Management Center will help States address challenges with data management procedures and data systems architecture and better meet current and future IDEA Part B and Part C data collection and reporting requirements. The Data Management Center's work will comply with the privacy and confidentiality protections under IDEA and FERPA. The Data Management Center will not provide the Department with access to child-level data and will further ensure that such data is de-identified, as defined in 34 CFR 99.31(b)(1).

The Data Management Center must be designed to achieve, at a minimum, the following expected outcomes:

(a) Increased capacity of States to use interagency agreements or other mechanisms to coordinate and integrate IDEA Part B and IDEA Part C data required under sections 616 and 618 of IDEA within their SLDS while meeting the applicable privacy requirements under Parts B and C of the IDEA and FERPA (which may include developing or disseminating TA resources on privacy, interagency agreements on data sharing and/or data coordination, and integration);

(b) Increased use of IDEA Part B and IDEA Part C data within States by developing products to allow States to report their special education, preschool special education, and early intervention data to various partners ( e.g., other State agencies, policymakers, school and early care and education program personnel, local and State school boards, local educational agency (LEA) administrators, early care and education childhood administrators, researchers, charter school authorizers, parents and advocates, Indian Tribes, and Tribal organizations) through their longitudinal data systems;

(c) Increased number of States that use data governance and data management procedures to increase their capacity to meet the IDEA Part B and IDEA Part C reporting requirements under sections 616 and 618 of IDEA;

(d) Increased capacity of States to utilize their SLDS and ECIDS to collect, report, analyze, and use high-quality IDEA Part B and IDEA Part C data (including data required under sections 616, 618, and 642 of IDEA);

(e) Increased capacity of States to use their SLDS and ECIDS to analyze high-quality data on the participation and outcomes of children with disabilities who receive services under IDEA and under Title I of the Elementary and Secondary Education Act of 1965, as amended (ESEA), to improve IDEA and ESEA programs and the outcomes of children with disabilities; and

(f) Increased capacity of States to coordinate and use available IDEA Part C early intervention data with IDEA Part B preschool special education data (and to integrate or link such data with ECIDS, if applicable) to analyze high-quality data on the participation and outcomes of infants, toddlers, and children with disabilities served under IDEA who may also participate in other programs and services ( e.g., child care, Early Head Start, Head Start, publicly funded preschool, and home visiting programs).

In addition to these programmatic requirements, to be considered for funding under this priority, applicants must meet the application and administrative requirements in this priority, which are:

(a) Describe, in the narrative section of the application under “Significance,” how the proposed project will—

(1) Address State challenges associated with State data management procedures, data systems architecture, and building ED Facts data files and reports for timely reporting of the IDEA Part B and IDEA Part C data to the Department and the public. To meet this requirement the applicant must—

(i) Present applicable national, State, or local data demonstrating the difficulties that States have encountered in the collection and submission of valid and reliable IDEA Part B and IDEA Part C data;

(ii) Demonstrate knowledge of current educational and technical issues and policy initiatives relating to IDEA Part B data and IDEA Part C collections and ED Facts file specifications for the IDEA Part B and IDEA Part C data collections; and

(iii) Present information about the current level of implementation of integrating IDEA Part B data within SLDS and IDEA Part C and IDEA Part B preschool special education data within ECIDs, and the reporting of high-quality IDEA Part B and IDEA Part C data to the Department and the public.

(b) Describe, in the narrative section of the application under “Quality of project services,” how the proposed project will—

(1) Achieve its goals, objectives, and intended outcomes. To meet this requirement, the applicant must provide—

(i) Measurable intended project outcomes; and

(ii) In Appendix A, the logic model (as defined in 34 CFR 77.1) by which the proposed project will achieve its intended outcomes that depicts, at a minimum, the goals, activities, outputs, and intended outcomes of the proposed project;

(2) Use a conceptual framework (and provide a copy in Appendix A) to develop project plans and activities, describing any underlying concepts, assumptions, expectations, beliefs, or theories, as well as the presumed relationships or linkages among these variables, and any empirical support for this framework;

Note: The following website provides more information on logic models and conceptual frameworks: https://ies.ed.gov/ncee/rel/Products/Region/central/Resource/100644.

(3) Be based on current research and make use of evidence-based  5 practices (EBPs). To meet this requirement, the applicant must describe—

(i) The current research on data collection strategies, data management procedures, and data systems architecture; and

(ii) How the proposed project will incorporate current research and EBPs in the development and delivery of its products and services;

(4) Develop products and provide services that are of high quality and sufficient intensity and duration to achieve the intended outcomes of the proposed project. To address this requirement, the applicant must describe—

(i) How it proposes to identify or develop the knowledge base on States' data management processes and data systems architecture;

(ii) A plan to provide a range of products and services to—

(A) Improve States' capacity to report high-quality IDEA Part B and Part C data required under sections 616, 618, and 642 of IDEA through their SLDS and other applicable data systems; and

(B) Improve States' capacity to link and integrate (where determined appropriate by States) their IDEA Part C early intervention and IDEA Part B preschool special education data with data/data systems associated with other Federal programs and services that support infants, toddlers, and young children and their families in order to report high-quality IDEA Part C data and IDEA Part B preschool special education data required under sections 616 and 618 of IDEA. The plan must include, at a minimum, how the project will—

( 1 ) In Years 1 through 5—

( i ) Support, in partnership with the Department, the implementation of an existing open-source electronic tool to assist States in building ED Facts data files and reports that can be submitted to the Department and made available to the public. The tool must utilize Common Education Data Standards (CEDS) and meet all States' needs associated with reporting the IDEA Part B and Part C data required under sections 616, 618, and 642 of IDEA;

( ii ) Provide maintenance to support the appropriate functionality of the open-source electronic tool as changes are made to data collections, reporting requirements, file specifications, and CEDS (such as links within the system to include TA products developed by other Office of Special Education Programs (OSEP) and Department-funded centers or contractors);

( iii ) Provide TA focused on data governance to facilitate the use of the open-source electronic tool and training to State staff to implement the open-source electronic tool;

( iv ) Revise the CEDS “Connections” to calculate metrics needed to report the IDEA Part B and Part C data required under sections 616 and 618 of IDEA;

( v ) Develop other outputs ( e.g., reports, Application Programming Interface, new innovations) of an open-source electronic tool that can support reporting by States of IDEA Part B data to different partner groups ( e.g., LEAs, charter schools, legislative branch, parents);

( vi ) Implement strategies to support the inclusion of other OSEP and Department-funded TA centers' products within the open-source electronic tool or build connections that allow the SEAs to pull IDEA Part B data efficiently into the other TA products;

( vii ) Support a user group of States that are using an open-source electronic tool for reporting IDEA Part B and Part C data required under sections 616 and 618 of IDEA; and

( viii ) Develop products and presentations that include tools and solutions to challenges in data management procedures and data system architecture for reporting the IDEA Part B and Part C data required under sections 616 and 618 of IDEA;

( 2 ) In Years 2 through 5—

( i ) Develop, in partnership with the Department, an open-source electronic tool to assist States with linking and integrating their IDEA Part C early intervention and IDEA Part B preschool special education data with other data/data systems associated with other Federal programs and services that support infants, toddlers, and young children and their families, in order to provide high-quality reporting of the IDEA Part C data and IDEA Part B preschool special education data required under sections 616 and 618 of IDEA; drive program improvement; improve results for children with disabilities; and improve compliance accountability. The tool must utilize CEDS and meet States' needs associated with linking or integrating their Part C early intervention and Part B preschool special education data with other data/data systems associated with other Federal programs that support infants, toddlers, and young children and their families;

( ii ) Develop the CEDS “Connections” to ensure the electronic tool is built for States to conduct analyses related to reporting the IDEA Part C data and IDEA Part B preschool special education data required under sections 616 and 618 of IDEA, driving program improvement, improving results for children with disabilities and their families, and improving compliance accountability;

( iii ) Provide maintenance to support the appropriate functionality of the open-source electronic tool as changes are made to data reporting requirements and CEDS;

( iv ) Provide TA on data governance to facilitate the use of the open-source electronic tool and training to State staff to implement the open-source electronic tool; and

( v ) Support a user group of States that are using an open-source electronic tool for reporting the IDEA Part C data and IDEA Part B preschool special education data required under sections 616, 618, and 642 of IDEA;

(iii) Its proposed approach to universal, general TA, 6 which must identify the intended recipients, including the type and number of recipients, that will receive the products and services, a description of the products and services that the Center proposes to make available, and the expected impact of those products and services under this approach;

(iv) Its proposed approach to targeted, specialized TA, 7 which must identify—

(A) The intended recipients, including the type and number of recipients, that will receive the products and services, a description of the products and services that the Center proposes to make available, and the expected impact of those products and services under this approach; and

(B) Its proposed approach to measure the readiness of potential TA recipients to work with the project, assessing, at a minimum, their current infrastructure, available resources, and ability to build capacity at the local level; and

(C) The process by which the proposed project will collaborate with Department-funded centers (including privacy TA centers such as the DaSy Center that provides Department-funded TA on early childhood data privacy, and the Privacy Technical Assistance Center) and other federally funded TA centers to develop and implement a coordinated TA plan when they are involved in a State;

(v) Its proposed approach to intensive, sustained TA, 8 which must identify—

(A) The intended recipients, including the type and number of recipients from a variety of settings and geographic distribution, that will receive the products and services under this approach;

(B) Its proposed approach to address States' challenges associated with integrating IDEA Part B data within SLDS and IDEA Part C and IDEA Part B preschool special education data within ECDIS and to report high-quality IDEA Part B and IDEA Part C data to the Department and the public, which should, at a minimum, include providing on-site consultants to SEAs and Part C lead agencies to—

( 1 ) Model and document data management and data system integration policies, procedures, processes, and activities within the State;

( 2 ) Support the State's use of an open-source electronic tool and provide technical solutions to meet State-specific data needs;

( 3 ) Develop a sustainability plan for the State to maintain the data management and data system integration work in the future; and

( 4 ) Support the State's cybersecurity plan in collaboration, to the extent appropriate, with the Department's Student Privacy Policy Office and its Privacy Technical Assistance Center;

( 5 ) Develop products and implement services that maximize efficiency. To address this requirement, the applicant must describe—

(i) How the proposed project will use technology to achieve the intended project outcomes;

(ii) With whom the proposed project will collaborate and the intended outcomes of this collaboration; and

(iii) How the proposed project will use non-project resources, such as non-Federal funds and in-kind contributions, to achieve the intended project outcomes; and

( 6 ) Develop a dissemination plan that describes how the applicant will systematically distribute information, products, and services to varied intended audiences, using a variety of dissemination strategies, to promote awareness and use of the Center's products and services.

(c) In the narrative section of the application under “Quality of the project evaluation or other evidence-building,” describe how the project will develop an evaluation plan in consultation with, and to be implemented by, a third-party evaluator. 9 The evaluation plan must—

(1) Articulate formative and summative evaluation questions, including important process and outcome evaluation questions. These questions must be related to the project's proposed logic model required under paragraph (b)(2)(ii);

(2) Describe how progress in and fidelity of implementation, as well as project outcomes, will be measured to answer the evaluation questions. Specify the measures and associated instruments or sources for data appropriate to the evaluation questions. Include information regarding reliability and validity of measures where appropriate;

(3) Describe strategies for analyzing data and how data collected as part of this plan will be used to inform and improve service delivery over the course of the project and to refine the proposed logic model and evaluation plan, including subsequent data collection;

(4) Provide a timeline for conducting the evaluation and include staff assignments for completing the plan. The timeline must indicate that the data will be available annually for the Annual Performance Report (APR) and at the end of Year 2; and

(5) Dedicate sufficient funds in each budget year to cover the costs of developing or refining the evaluation plan in consultation with a third-party evaluator, as well as the costs associated with the implementation of the evaluation plan by the third-party evaluator.

(d) Demonstrate, in the narrative section of the application under “Adequacy of resources and quality of the project personnel,” how—

(1) The proposed project will encourage applications for employment from persons who are members of groups that have traditionally been underrepresented based on race, color, national origin, gender, age, or disability, as appropriate;

(2) The proposed key project personnel, consultants, and subcontractors have the qualifications and experience to carry out the proposed activities and achieve the project's intended outcomes;

(3) The applicant and any key partners have adequate resources to carry out the proposed activities; and

(4) The proposed costs are reasonable in relation to the anticipated results and benefits, and funds will be spent in a way that increases their efficiency and cost-effectiveness, including by reducing waste or achieving better outcomes.

(e) Describe, in the narrative section of the application under “Quality of the management plan,” how—

(1) The proposed management plan will ensure that the project's intended outcomes will be achieved on time and within budget. To address this requirement, the applicant must describe—

(i) Clearly defined responsibilities for key project personnel, consultants, and subcontractors, as applicable; and

(ii) Timelines and milestones for accomplishing the project tasks;

(2) Key project personnel and any consultants and subcontractors will be allocated and how these allocations are appropriate and adequate to achieve the project's intended outcomes;

(3) The proposed management plan will ensure that the products and services provided are of high quality, relevant, and useful to recipients; and

(4) The proposed project will benefit from a diversity of perspectives, including those of families, educators, TA providers, researchers, and policy makers, among others, in its development and operation.

(f) Address the following application requirements. The applicant must—

(1) Include, in Appendix A, personnel-loading charts and timelines, as applicable, to illustrate the management plan described in the narrative;

(2) Include, in the budget, attendance at the following:

(i) A one and one-half day kick-off meeting in Washington, DC, after receipt of the award, and an annual planning meeting in Washington, DC, with the OSEP project officer and other relevant staff during each subsequent year of the project period.

Note: Within 30 days of receipt of the award, a post-award teleconference must be held between the OSEP project officer and the grantee's project director or other authorized representative;

(ii) A three-day project directors' conference in Washington, DC, during each year of the project periods, provided that, if the meeting is conducted virtually, the project must reallocate unused travel funds no later than the end of the third quarter of each budget period;

(iii) Three annual two-day trips to attend Department briefings, Department-sponsored conferences, and other meetings, as requested by OSEP; and

(3) Include, in the budget, a line item for an annual set-aside of five percent of the grant amount to support emerging needs that are consistent with the proposed project's intended outcomes, as those needs are identified in consultation with, and approved by, the OSEP project officer. With approval from the OSEP project officer, the project must reallocate any remaining funds from this annual set-aside no later than the end of the third quarter of each budget period;

(4) Provide an assurance that it will maintain a high-quality website, with an easy-to-navigate design, that meets government or industry-recognized standards for accessibility;

(5) Include, in Appendix A, an assurance to assist OSEP with the transfer of pertinent resources and products and to maintain the continuity of services to States during the transition to a new award at the end of this award period, as appropriate; and

(6) Budget at least 50 percent of the grant award for providing targeted and intensive TA to States.

Types of Priorities:

When inviting applications for a competition using one or more priorities, we designate the type of each priority as absolute, competitive preference, or invitational through a notice in the Federal Register . The effect of each type of priority follows:

Absolute priority: Under an absolute priority, we consider only applications that meet the priority (34 CFR 75.105(c)(3)).

Competitive preference priority: Under a competitive preference priority, we give competitive preference to an application by (1) awarding additional points, depending on the extent to which the application meets the priority (34 CFR 75.105(c)(2)(i)); or (2) selecting an application that meets the priority over an application of comparable merit that does not meet the priority (34 CFR 75.105(c)(2)(ii)).

Invitational priority: Under an invitational priority, we are particularly interested in applications that meet the priority. However, we do not give an application that meets the priority a preference over other applications (34 CFR 75.105(c)(1)).

Final Priority

We will announce the final priority in a document in the Federal Register . We will determine the final priority after considering public comments on the proposed priority and other information available to the Department. This document does not preclude us from proposing additional priorities, requirements, definitions, or selection criteria, subject to meeting applicable rulemaking requirements.

Note: This document does not solicit applications. In any year in which we choose to use this proposed priority, we invite applications through a notice in the Federal Register .

Under Executive Order 12866, the Office of Management and Budget (OMB) determines whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by OMB. Section 3(f) of Executive Order 12866, as amended by Executive Order 14094, defines a “significant regulatory action” as an action likely to result in a rule that may—

(1) Have an annual effect on the economy of $200 million or more (adjusted every three years by the Administrator of Office of Information and Regulatory Affairs (OIRA) for changes in gross domestic product); or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, territorial, or Tribal governments or communities;

(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impacts of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise legal or policy issues for which centralized review would meaningfully further the President's priorities, or the principles set forth in this Executive order, as specifically authorized in a timely manner by the Administrator of OIRA in each case.

This proposed regulatory action is not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866, as amended by Executive Order 14094.

We have also reviewed this proposed regulatory action under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866, as amended by Executive Order 14094. To the extent permitted by law, Executive Order 13563 requires that an agency—

(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);

(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;

(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);

(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and

(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.

Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”

We are issuing the proposed priority only on a reasoned determination that their benefits would justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that would maximize net benefits. Based on the analysis that follows, the Department believes that this regulatory action is consistent with the principles in Executive Order 13563.

We also have determined that this regulatory action would not unduly interfere with State, local, and Tribal governments in the exercise of their governmental functions.

In accordance with these Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The potential costs are those resulting from statutory requirements and those we have determined as necessary for administering the Department's programs and activities.

Executive Order 12866 and the Presidential memorandum “Plain Language in Government Writing” require each agency to write regulations that are easy to understand.

The Secretary invites comments on how to make the proposed priority easier to understand, including answers to questions such as the following:

• Are the requirements in the proposed priority clearly stated?

• Does the proposed priority contain technical terms or other wording that interferes with their clarity?

• Does the format of the proposed priority (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce their clarity?

• Would the proposed priority be easier to understand if we divided them into more (but shorter) sections?

• Could the description of the proposed priority in the SUPPLEMENTARY INFORMATION section of this preamble be more helpful in making the proposed priority easier to understand? If so, how?

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

To send any comments about how the Department could make the proposed priority easier to understand, see the instructions in the ADDRESSES section.

Intergovernmental Review: This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.

This document provides early notification of our specific plans and actions for this program.

Regulatory Flexibility Act Certification: The Secretary certifies that the proposed priority would not have a significant economic impact on a substantial number of small entities. The small entities that this proposed regulatory action would affect are LEAs, including charter schools that operate as LEAs under State law; institutions of higher education; other public agencies; private nonprofit organizations; freely associated States and outlying areas; Indian Tribes or Tribal organizations; and for-profit organizations. We believe that the costs imposed on an applicant by the proposed priority would be limited to paperwork burden related to preparing an application and that the benefits of the proposed priority would outweigh any costs incurred by the applicant.

Participation in the Technical Assistance on State Data Collection program is voluntary. For this reason, the proposed priority would impose no burden on small entities unless they applied for funding under the program. We expect that in determining whether to apply for Technical Assistance on State Data Collection program funds, an eligible entity would evaluate the requirements of preparing an application and any associated costs and weigh them against the benefits likely to be achieved by receiving a Technical Assistance on State Data Collection program grant. An eligible entity probably would apply only if it determines that the likely benefits exceed the costs of preparing an application.

We believe that the proposed priority would not impose any additional burden on a small entity applying for a grant than the entity would face in the absence of the proposed action. That is, the length of the applications those entities would submit in the absence of the proposed regulatory action and the time needed to prepare an application would likely be the same.

This proposed regulatory action would not have a significant economic impact on a small entity once it receives a grant because it would be able to meet the costs of compliance using the funds provided under this program. We invite comments from eligible small entities as to whether they believe this proposed regulatory action would have a significant economic impact on them and, if so, request evidence to support that belief.

The proposed priority contains information collection requirements that are approved by OMB under OMB control number 1820-0028. The proposed priority does not affect the currently approved data collection.

Accessible Format: On request to the program contact person listed under FOR FURTHER INFORMATION CONTACT , individuals with disabilities can obtain this document in an accessible format. The Department will provide the requestor with an accessible format that may include Rich Text Format (RTF) or text format (txt), a thumb drive, an MP3 file, braille, large print, audiotape, compact disc, or other accessible format.

Electronic Access to This Document: The official version of this document is the document published in the Federal Register . You may access the official edition of the Federal Register and the Code of Federal Regulations at www.govinfo.gov. At this site you can view this document, as well as all other Department documents published in the Federal Register , in text or Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site.

You may also access Department documents published in the Federal Register by using the article search feature at www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

Title 38 of the Code of Federal Regulations, chapter I, part 14, governs Legal Services, General Counsel, and Miscellaneous Claims. Executive Order 13563 requires agencies to carry out retrospective analyses of rules that “may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.” Exec. Order No. 13563, section 6, 76 FR 3821, 3822 (Jan. 21, 2011). After a review of 38 CFR part 14, VA's Office of General Counsel (OGC) is proposing revisions to reflect nomenclature changes to the names of certain Office of General Counsel offices and the employees in those offices. The proposed revisions would also make changes in certain policies, procedures, and authorities. In the amendatory text of this proposed rule, OGC is removing 38 CFR 14.503 through 14.504 and revising 38 CFR 14.500 through 14.502, 14.505 through 507, 14.514 through 14.518, 14.560 through 14.561, 14.600 through 14.605, 14.615 through 14.619, 14.664 through 14.669, and 14.800 through 14.810, when necessary to (1) decrease the likelihood of introducing errors, (2) improve efficiency during the publication process, and (3) meet Office of the Federal Register drafting and formatting requirements for publication. The substantive individual changes to the affected CFR units are detailed elsewhere in this preamble.

As a result of a reorganization, the Office of General Counsel changed its organizational structure from regions to districts, and further changed the names of the leadership in those districts from Regional Counsel to Chief Counsel or District Chief Counsel. To reflect those changes, the following sections are proposed to be amended to reflect the change in position titles from “Regional Counsel” to “Chief Counsel:” §§ 14.500(e), 14.501's title and paragraphs (a) and (c) through (e), 14.514(a), (b), and (e), and 14.516. The Regulation's Table of Contents is also proposed to be amended to reflect the new “Chief Counsel” language in § 14.501.

Multiple sections are proposed to be amended to reflect a nomenclature change from “Regional Counsel” to “District Chief Counsel.” The sections proposed to be amended to reflect the new language of “District Chief Counsel” are §§ 14.517, 14.518(a) and (b)(1) through (4), 14.560, 14.561, 14.605(b), 14.709(a) through (c), and 14.807(b). Additional sections are proposed to be amended to reflect a nomenclature change from “his or her” to “their” in §§ 14.500(a), 14.514(b) and (c), 14.518(a), 14.600(a), (c) and (d), 14.605(b) through (e), 14.615(b) and (c), 14.618(a), 14.619(a), 14.560, 14.665(a), 14.667(a), 14.807(a), and 14.810(f). Proposed amendments are included in §§ 14.605(a), 14.665(a), and 14.807(a) to change “he or she” to “they.”

Multiple sections in part 14 are proposed to be amended with various other nomenclature changes as well as changes intended to clarify the meaning of the regulations. The language in § 14.500, “Functions and responsibilities of General Counsel” and specifically paragraph (e) is proposed to be amended to remove “field” from the phrase “system of field offices” and substitute the word “organizations” for the phrase “field installations.” This amendment is proposed as the current language in the regulation is outdated and is no longer used to describe the Agency's various offices, locations, and organizations. In § 14.500(e), the last phrase is proposed to be changed from “the Regional Counsel” to “a Chief Counsel” for consistency in reference to the updated title for these positions and to reflect that these matters may be reported to different Chief Counsels, depending on the type of case. Finally, in paragraph (f), the word “as” is proposed to be inserted in the existing phrase so that it now states: “Other matters as assigned.”

Additional amendments are proposed in § 14.501 which is proposed to be renamed to “Functions and Responsibilities of Chief Counsels” to reflect the new position titles of employees formerly referred to as Regional Counsels. Specifically, paragraph (b) is proposed to be amended to include the phrase “Deputy Chief Counsels” before the phrase “and designated staff attorneys” to provide a more comprehensive list of the Office of General Counsel employees who are authorized to perform the tasks listed in this paragraph. Paragraph (c) includes an additional proposed amendment to replace the phrase “installations within the district assigned” with the phrase “organizations within their geographic area of responsibility and/or legal practice area of responsibility.” This amendment is proposed as the term “installations” is outdated and is no longer used to describe the Office of General Counsel's areas of responsibility. Additional changes are proposed in paragraph (b) to correct the spelling of “affidavits” and in paragraph (c) to change the word “authority” to “authorized” for readability.

The language in § 14.501(e) is proposed to be amended to remove the sentence “Where it is impractical for the Regional Counsel to perform the legal service because of cost, distance, etc., the customary fee for the service rendered by a local attorney employed by the Regional Counsel will be borne by the administration requesting such action.” This sentence is proposed to be removed as the process described does not have a corresponding statutory authority.

Additional amendments are proposed in paragraph (f), including the removal of the phrase “addresses of Regional Counsels are as follows” and the removal of the list of regions within the Office of General Counsel, the Regional Counsel's physical addresses, and the states over which those Regional Counsel offices had jurisdiction. This information is proposed to be replaced with the following statement: “locations and jurisdictions of the District Chief Counsels can be found here: https://www.va.gov/OGC/DistrictOffices.asp.” This web page link and the new language in § 14.501(f) are proposed to reflect the updated office names, jurisdictions, and locations of the District Chief Counsels.

The language in § 14.502, “Requests for legal opinions from Central Office” describes the Department officials who may make a request for formal legal advice from the Office of General Counsel. This rulemaking proposes to update this section to reflect grammatical and nomenclature changes. Specifically, the phrase “requests for” is proposed to be replaced with “A request for” at the beginning of the paragraph for readability. To reflect updated titles for individuals who hold various leadership positions in the Department, the following nomenclature changes have been proposed: the phrase “an Under Secretary” will be inserted after “Deputy Secretary” and the phrases “Assistant Secretaries” and “Deputy Assistant Secretaries” will be updated to “an Assistant Secretary” and “a Deputy Assistant Secretary.” The phrase “administration head or top staff office” is proposed to be removed as the individuals described with that language are now referred to more specifically. Finally, the word “and” will be replaced with the word “or” after the phrase “Deputy Assistant Secretary” to indicate that any one of the individuals listed may submit a request for formal legal advice from the Office of General Counsel.

The Office of General Counsel proposes to remove certain regulations in their entirety as they contain outdated procedures, do not reflect current Office of General Counsel operations, and describe communications between offices and teams within the Office of General Counsel that do not require reference in Federal regulations. Specifically, this rulemaking proposes to remove § 14.503, “Requests for legal advice and assistance in other than domestic relations matters” and § 14.504, “Domestic relations questions, authority and exceptions” in their entirety for these reasons. Reference to these regulations is also proposed to be removed from the Table of Contents in part 14.

Further amendments are proposed to § 14.505, “Submissions” which describes how certain Department officials can request formal legal advice from the Office of General Counsel. Specifically, it is proposed that the language in this section be amended to clarify that it refers to requests for legal opinions pursuant to § 14.502. For clarity and coherence in the paragraph's first sentence, it is proposed that the phrase “on which the opinion is desired” be replaced with “underlying the opinion requested.” In the paragraph's second sentence, the rulemaking proposes to replace the phrase “original papers will not be submitted unless pertinent portions thereof cannot practicably be summarized or copies made and attached as exhibits” with the phrase “relevant documents should be attached as exhibits to the submission.” This proposed replacement is intended to further clarify and simplify these instructions and to remove the outdated term of “original papers.”

The language and structure in § 14.507, “Opinions” is proposed to be revised to clarify that it relates only to those things that the General Counsel has designated as precedent, conclusive, or advisory opinions and does not apply to most of the guidance written by the General Counsel or the Office of General Counsel. The section is proposed to be further amended to clearly delineate and describe the three categories of opinions.

The newly proposed paragraph (a) in § 14.507 would provide a general overview and introduction of the three types of legal opinions described in this section that may be requested under § 14.502 or issued when determined necessary or appropriate. Under this rulemaking, all of the existing language in paragraph (a) is proposed to be removed or moved to paragraph (b) and the newly proposed paragraph (f).

The proposed changes to paragraph (b) in § 14.507 include inserting the title “ Precedent Opinions” to clarify the subject of this paragraph and inserting the word “Principal” before the phrase “Deputy General Counsel acting as or for the General Counsel” to reflect that the Principal Deputy General Counsel is the individual who may be acting as or for the General Counsel. Proposed revisions to the second sentence in (b) include the addition of the phrase “The designated holdings in written legal opinions” at the beginning of the sentence to clarify that OGC will affirmatively designate certain holdings or conclusions as precedent opinions in a written legal opinion. Paragraph (b) includes a proposed revision to add the phrase “The holdings in an opinion designated as a precedent opinion are binding” at the beginning of the third sentence to further clarify that only holdings in an opinion that has been affirmatively designated as a “precedent opinion” are the subject of this section. The third sentence includes another proposed addition where the phrase “or the opinion has been withdrawn” has been added at the end of the sentence. This proposed language is intended to further clarify that the withdrawal of an opinion which has been designated as a precedent opinion is another action which will reverse the status of the opinion such that the holdings in that opinion are no longer binding on Department officials and employees in subsequent matters involving a legal issue decided in that opinion. Finally, the third sentence includes two proposed revisions for grammatical reasons and specifically, the replacement of “is” with the word “are” and removal of the word “or” before the phrase “the opinion has been overruled.”

This rulemaking proposes to re-write paragraph (c) in its entirety to provide additional information and explanation for the category of opinions designated as “conclusive opinions” which is mentioned in paragraph (a) but not fully described in the existing regulation. To provide additional description and guidance on “conclusive opinions,” the current language in paragraph (c) is proposed to be removed as it is outdated and references procedures for legal opinions that are no longer followed. The existing text in paragraph (c) is proposed to be replaced with the following language: “ Conclusive opinions. The designated holdings in written legal opinions designated as conclusive opinions under this section shall be considered by the Department of Veterans Affairs to be subject to the provisions of 5 U.S.C. 552(a)(2). The holdings in an opinion designated as a conclusive opinion are binding as to all Department officials and employees with respect to the particular matter at issue, unless there has been a material change in controlling statute or regulation; the opinion has been overruled or modified by a subsequent precedent opinion, applicable conclusive opinion, or judicial decision; or the opinion has been withdrawn.” This proposed language is intended to describe conclusive opinions and clearly delineate this type of opinion from the others listed in the section.

The Office of General Counsel proposes to include a new paragraph in paragraph (d) to describe “advisory opinions” which are mentioned in the current version of the regulation in paragraph (a) but were not specifically defined. The new proposed language in paragraph (d) describes advisory opinions as opinions that are not binding but are issued to provide legal guidance or recommendations to Department officials.

Two additional paragraphs are proposed to be added to § 14.507 to provide further guidance on the scope of this section and to include language from the existing paragraph (a) which describes where conclusive opinions are maintained. A proposed new paragraph (e) would include language to clarify that this regulation applies to the specific types of legal opinions issued by the General Counsel or designee as described in paragraphs (a) through (d) and acknowledges that employees in the Office of General Counsel provide other types of informal legal opinions or legal guidance in accordance with existing policies and practice.

Finally, a proposed new paragraph (f) would describe where opinions from this regulation are maintained. Except for the newly proposed phrase “described in paragraphs (a) through (d),” the language in the proposed paragraph (e) is included in the current version of the regulation in paragraph (a). The Office of General Counsel proposes to move this language to paragraph (e) to clarify that it applies to all opinions described in this section. For grammatical and consistency reasons, it is proposed that the word “the” be inserted before the phrase “Department of Veterans Affairs” in multiple locations throughout the section.

The Office of General Counsel proposes to amend § 14.514, “Suits by or against United States or Department of Veterans Affairs officials; indemnification of Department of Veterans Affairs employees” with additional nomenclature changes. This section outlines the procedures to be followed when lawsuits are filed against the Department, the Secretary, and individual Department employees. In paragraphs (a) and (b), the word “petition” is proposed to be replaced with “complaint” to correct outdated language. In paragraph (b), the phrase “(or equivalent position)” is proposed to be included in the second sentence after “facility Director” to clarify that the official who completes an affidavit regarding an employee's scope of employment may hold a position other than facility Director. The phrase “two copies of” is proposed to be removed from the last sentence as it refers to an outdated process for transmitting paper copies. In paragraph (c)(4), the word “advice” is proposed to replace the word “view” in the third sentence such that it now reads: “Where the Department of Veterans Affairs determines it appropriate, the Agency shall seek the advice of the Department of Justice.” Additional proposed changes to paragraph (e) include revisions to the second sentence where the phrase “two copies of such report” is proposed to be replaced with “will forward a copy of such report . . .” This proposed change is intended to reflect that the language of “two copies” is outdated as most communications and reports are sent electronically within VA. Paragraph (e) is further revised to change the last sentence to reflect OGC's current organizational structure and direct Chief Counsels to send a copy of the report to their Deputy General Counsel, rather than directly to the General Counsel.

The language in § 14.515, “Suits involving loan guaranty matters” is proposed to be revised in its entirety to reflect the language in 38 U.S.C. 3730(a). Under 38 U.S.C. 3730(a), Congress authorized VA to use the services of both VA and non-VA attorneys to protect VA's interests in home loans arising from or related to VA's home loan benefit programs. The authority is subject to the direction and supervision of the United States Attorney General and to such terms and conditions as the United States Attorney General may prescribe, and nothing in section 3730 derogates from the authority of the Attorney General under sections 516 and 519 of title 28 to direct and supervise all litigation to which the United States or an agency or officer of the United States is a party. 38 U.S.C. 3730(a), (b).

Proposed § 14.515(a) would essentially restate the statute. It would provide that attorneys employed by the Office of General Counsel may exercise the right of the United States to bring suit in any court of competent jurisdiction for the limited purposes authorized under 38 U.S.C. 3730. The first limited purpose would be to foreclose a loan made or acquired by the Secretary under any home loan program administered by the Veterans Benefits Administration. The second would be to recover possession of any property conveyed to the Secretary after the foreclosure of a home loan previously described.

Proposed § 14.515(b) and (c) would clarify the scope of the section. Paragraph (b) would provide that to carry out the activities described in § 14.515(a), the Office of General Counsel may acquire, or oversee the acquisition and performance of, legal services provided by attorneys other than those who are employees of the Department of Veterans Affairs. Paragraph (c) would provide that the authority to bring suit also means representation in bankruptcy proceedings, as well as other activities necessary to preserve the Secretary's interest in a loan guaranteed, insured, or made under 38 U.S.C. chapter 37, or in a property acquired under such chapter. The clarifications would codify, without change, the longstanding policies and procedures VA implemented in coordination with, and subject to the supervision of, the Department of Justice.

Proposed § 14.515(d) would restate the element of the statute requiring that the activities described in § 14.515 are subject to the direction and supervision of the United States Attorney General and to such terms and conditions as the United States Attorney General may prescribe. Proposed § 14.515(e) would provide that in any legal or equitable proceeding to which the Secretary is a party (including probate and bankruptcy proceedings) related to any home loan program administered by the Veterans Benefits Administration, original process and any other process prior to appearance that may be served on the Secretary must be delivered to the Office of General Counsel, 810 Vermont Ave. NW (02), Washington, DC 20420. Additionally, proposed § 14.515(e) would provide that copies of such process must also be served on the United States Attorney General and the United States Attorney having jurisdiction over that area, and that failure to comply with the requirements of proposed § 14.515(e) renders the service improper. The proposed change is necessary to reflect the Office of General Counsel's restructure, help the public understand whom to contact with questions about service of process related to the home loan programs, and further ensure timely responses to service of process. Because proposed § 14.515(e) would render 38 CFR 36.4321 obsolete, VA proposes to remove § 36.4321.

The language in § 14.516 “Escheat and post fund cases” includes minimal proposed edits. This section describes procedures to be followed when the Department receives assets or property under escheat, gift, or General Post Fund authorities. This section's proposed amendments include the addition of the phrase “where the assets or property are not surrendered upon entitlement” after the citation “38 U.S.C. Ch. 85” to further clarify when the Department of Veterans Affairs is entitled to possession of assets or property under the listed escheat, gifts, and General Post Fund provisions. Additionally, another amendment proposed throughout the section is to include the phrase “or entity” after “person” to clarify that the assets or property described in this section may be in possession of an entity and not a singular person in every case.

The language in § 14.517 “Cases affecting the Department of Veterans Affairs generally” is proposed to be amended to add the phrase “and related State and Federal agencies” to expand the entities with which the Office of General Counsel will liaise to ensure the Agency is notified of all cases involving the Department of Veterans Affairs. Additional proposed amendments include replacement of the word “insure” with “ensure” to correct a typographical error in the existing regulation and replacement of the phrase “Such information” with “Cases affecting substantial interest of the Department of Veterans Affairs.” This proposed amendment is intended to specify the types of cases that will be forwarded to the General Counsel.

The Office of General Counsel proposes to amend § 14.518 “Litigation involving beneficiaries in custody of Department of Veterans Affairs employees acting in official capacity” to reflect nomenclature changes. In paragraph (a), the phrase “field facility” is proposed to be replaced with “Department of Veterans Affairs medical facility” and in paragraphs (b)(1) and (3), the word “hospital” is proposed to be replaced with “medical facility.” In paragraph (b)(4), the Office of General Counsel proposes to replace the words “installations” and “installation” with the words “facilities” and “facility” respectively. These terminology changes are proposed to reflect the updated and most commonly used terms for medical facilities within the Department.

Paragraph (b) in § 14.518 describes procedures for when Department employees are served with a writ of habeas corpus involving a VA beneficiary. Explanatory language is proposed to be added to paragraph (b)(3) for clarity and comprehensiveness. The term “or other representative” is proposed to be included after the phrase “Veteran's attorney” to explain that the medical facility can notify representatives other than attorneys when a Veteran is to be discharged. The addition of the phrase “subject to existence of an appropriate release authority” is proposed at the end of the second sentence to ensure that authority to release the patient has been received prior to discharge in the context of involuntary confinement of a mentally ill patient. Additional proposed amendments include the addition of hyphens to the word “self-protection” in paragraph (a) and to the word “self- injury” in paragraph (b)(3) for grammatical reasons.

The title of 38 CFR 14.560 is proposed to be updated to reflect the plural of the word “crimes” so that it matches the name of the statute it is referencing. Specifically, the proposed new title will now read “Procedure where violation of penal statutes is involved including those offenses coming within the purview of the Assimilative Crimes Act (18 U.S.C. 13).” This section includes additional proposed nomenclature changes, including to correct the spelling of the word “warrant” and, in the third sentence, to substitute “the Chief Counsel” for “he or she.”

The language in § 14.561 “Administrative action prior to submission” is proposed to be amended to reflect updated citations. Specifically, the parenthetical citation in § 14.561 is proposed to be replaced with “38 U.S.C. 6103” to reflect the correct current citation.

The Office of General Counsel proposes multiple amendments throughout the “Federal Tort Claims” section of the regulations. Proposed amendments to § 14.600 are intended to remove outdated citations and language. This regulation provides an overview of the Federal Tort Claims Act and describes various delegations of authority for the settlement of any claim and the authority to reconsider the final denial of a claim. One proposed edit to § 14.600 is to update the title of the regulation from “Federal Tort Claims Act—general” to “Federal Tort Claims Act generally.” An additional proposed amendment in paragraph (a) is the revision of the first sentence to remove reference to 28 U.S.C. 2402, 2411 and 2412 as these citations are not helpful. Specifically, the first sentence is now proposed to state: “The Federal Tort Claims Act (28 U.S.C. 1291, 1346, 1402, 2401(b)), and 2671 through 2680).” In paragraph (c), the phrase “and other necessary instruments in connection therewith” is proposed to be removed as it is outdated and vague language. The phrase “or stipulation for settlement” is proposed to replace the removed language to provide more explanation regarding the authority for settlement that is delegated to the individuals listed in this paragraph. In paragraph (c)(3), the phrase “General Counsel, Deputy General Counsel, and Chief Counsel, Torts Law Group” is proposed to be replaced with “Deputy Chief Counsels, Torts Law Group” to clarify that Torts Law Group's Deputy Chief Counsels are authorized to act regarding claims, subject to the parameters described in paragraphs (c)(3)(i) through (iii). Additionally, the phrase “but not more than $500,000” is proposed to be removed from paragraph (c)(3)(i) as it is redundant to the language in paragraph (c)(3) which describes the approval required for awards, settlements, and compromises in excess of $500,000.

The Office of General Counsel proposes significant amendments to § 14.601 “Investigation and development,” a section which describes the processes for the submission, investigation, and processing of tort claims. The proposed amendments include new language to provide clearer descriptions regarding the processing of tort claims and the removal of language that exists in other regulations, is no longer applicable, or is outdated. First, the title of paragraph (a) is proposed to be changed to replace the phrase “untoward incidents” with the phrase “general tort claims” to reflect the updated language that is used by the Office of General Counsel to describe this category of tort claims.

In paragraph (a)(1), the phrase “Department of Veterans Affairs” is proposed to be inserted before phrase “Government-owned vehicle” in the first sentence to specify that the procedures in this section relate to government-owned vehicles used by the Department. In the second sentence of paragraph (a)(1), additional nomenclature changes are proposed, including the replacement of the word “said” with the word “the” so that the beginning of the sentence now reads “A copy of the report.” This sentence is proposed to be amended to clarify that the SF 91 and VA Form 2162 should initially be sent to the Director of the facility involved in the motor vehicle accident.

Additional amendments are proposed for paragraph (a)(2) in § 14.601 and specifically, the existing paragraphs (a)(2)(i) and (ii) are proposed to be combined and streamlined to comprise a new single paragraph in (a)(2) which outlines procedures for all property damage or loss, including that which relates to patients' personal effects. Proposed amendments to the first sentence in the newly combined paragraph (a)(2) include the insertion of the phrase “non-medical malpractice” before the term “incident” and replacement of the phrase “other than” with “including” prior to the phrase “personal effects of the patient” in the new paragraph (a)(2). The phrase “to the facility Director or designee” is added to the end of the first sentence to clarify where incidents described in this paragraph should be reported. Nomenclature changes are also proposed to reduce extraneous language, including replacement of the phrase “due apparently or allegedly to the” with the phrase “due to alleged” and replacement of the phrase “an employee of the Department of Veterans Affairs acting within the scope of his or her office of employment, or damage to or loss of Government-owned property caused by other than a Department of Veterans Affairs employee acting within the scope of his or her office ” with “a VA employee acting within the scope of their employment will be immediately reported to the facility Director or designee”

The newly edited paragraph (a)(2) also includes a proposed new sentence which states: “If a claim is filed seeking damages of $5,000 or less, it will be adjudicated by the facility.” This sentence is proposed to be included to reflect the same information provided in § 14.600(c)(1) which was amended via rulemaking on October 20, 2022. To further clarify the parameters of the $5,000 settlement authority for VA facility Directors, this section is proposed to be amended to include the additional phrase: “If the claim seeks damages in excess of $5,000” prior to the phrase “the Director of the facility where such occurrence took place will promptly transmit a copy of the report.” Finally, this sentence is proposed to be amended to replace the phrase “Regional Counsel who will authorize such additional investigation as the circumstance of the case may warrant” with the phrase “Office of General Counsel Torts Law Group for investigation and adjudication.” This proposed replacement is intended to consistently reiterate that the Torts Law Group manages the investigation and adjudication of these claims. Additionally, a sentence is being added to clarify that the Office of General Counsel, Torts Law Group will investigate and adjudicate non-medical malpractice claims brought against the Veterans Benefits Administration and National Cemetery Administration. As these proposed amendments ensure that all of the relevant information related to the investigation and development of these types of tort claims is described in the newly proposed paragraph (a)(2), the existing paragraphs (a)(2)(ii) and (a)(3) and (4) are proposed to be removed.

The Office of General Counsel proposes to revise paragraph (b) of § 14.601 to remove language that describes outdated procedures. The existing language regarding referral to the Under Secretary for Health via the Director, Medical-Legal Affairs and the language stating that the responsible Regional Counsel involved and the General Counsel will be guided by the views of the Under Secretary for Health does not accurately describe current procedures for the investigation and development of medical malpractice claims. As a result, these sentences are proposed to be replaced with the following statement which concisely summarizes the current process for medical malpractice claims: “All medical malpractice claims will be referred to the Office of General Counsel, Torts Law Group for investigation and adjudication.”

The procedures described in § 14.602, “Requests for medical information” include proposed amendments as the information in the existing regulation does not accurately reflect current processes. Specifically, the following statement in paragraph (a): “Where there is indication that a tort claim will be filed, medical records or other information shall not be released without approval of the Regional Counsel” is proposed to be removed from this regulation as it is outdated and does not accurately reflect current procedures. The statement in paragraph (b) will remain and comprise the only language in this regulation and is intended to reflect that the Department follows the Freedom of Information Act (FOIA) and its implementing regulations in the release of documents.

The language in § 14.603, “Disposition of claims” includes proposed amendments. This regulation section generally describes that a claimant's indebtedness to the Government will be included in a tort claim award. The proposed amendments include the removal of the last two sentences: “The amount of the indebtedness is for credit to the appropriation account from which the services were provided. The voucher prepared for settlement of the claim will specify the amount to be deposited to the credit of the designated account and the balance of the aware be paid to the claimant.” These statements are proposed to be removed as they include extraneous language that describes outdated procedures regarding the settlement of tort claims with debt related to unauthorized medical treatment.

The Office of General Counsel proposes to amend § 14.604, “Filing a claim” to reflect nomenclature changes and to specifically describe certain procedures regarding the filing of administrative tort claims and the processing of tort claims immediately after their receipt. In the first sentence of paragraph (a), the phrase “an alleged” before negligent or wrongful act or omission is proposed to be included to convey that the acts or omissions at issue in the claim have not been fully adjudicated by this point in the tort claim process. The phrase “a Standard Form 95 (SF 95)” is proposed to replace the phrase “SF 95” to explain the abbreviation for this document. In the second sentence in paragraph (a), the phrase “Office of General Counsel, Torts Law Group” is proposed to replace “Regional Counsel having jurisdiction of the area wherein the occurrence complained of took place” to reflect that after a reorganization, the Torts Law Group handles administrative tort claims for the Office of General Counsel. Language has also been added to this sentence to provide a link to a website with further instructions for submitting a claim.

Additional nomenclature changes are proposed in the third and fourth sentence of § 14.604(a), including the replacement of “He or she” with “The claimant” and the replacement of “Department of Veterans Affairs” with “VA” for readability. Finally, the proposed amendment in the fourth sentence in paragraph (a) will replace the phrase “it will be forwarded to the Department of Veterans Affairs General Counsel, for appropriate action” with “the Office of General Counsel will immediately transfer the claim to the appropriate agency in accord with 28 CFR 14.2(b)(1).” This substitution is intended to accurately describe current practice when other Federal agencies may be involved in a claim.

In paragraph (b) of § 14.604, the phrase “an executed SF 95” is proposed to be replaced with the phrase “a signed SF 95” for clarity. Additionally, the phrase “written notification of an incident” is proposed to be replaced with “detailed written statement of the facts and circumstances giving rise to the claim, including the time, place, and date of the accident or” in order to provide a detailed explanation to the previously vague phrase of “notification.” This section also proposes to remove the final sentence regarding the receipt of an SF-95 as it is outdated and no longer describes current procedures.

Several amendments are proposed throughout § 14.605 “Suits against Department of Veterans Affairs employees arising out of a wrongful act or omission or based upon medical care and treatment furnished in or for the Veterans Health Administration” to replace outdated language and procedures. In paragraph (a)(2)(ii), the phrase “property damage” is proposed to be removed because paragraph (a)(2) describes the applicability of 38 U.S.C. 7316 which applies to personal injury, including death, and medical malpractice but does not apply to property damage. Throughout paragraph (b), the phrase “or to the Office of General Counsel, Torts Law Group” is proposed to be added to clarify that employees can provide a copy of all papers received regarding a Federal lawsuit to their local Chief Counsel or to the Torts Law Group. Additionally, the phrase “he or she” is proposed to be replaced with “the employee” in two places in this paragraph for grammatical consistency.

Paragraphs (c) and (d) in § 14.605 are proposed to be amended to use the term “immunity”, rather than “representation”, “protection”, or “immunization” to clarify the protection of employees acting within the scope of their employment. Paragraph (c) is further amended to remove language that describes outdated procedures that are no longer followed when a lawsuit has been filed against a VA employee. The first sentence includes a proposed amendment to replace the phrase “the Regional Counsel having jurisdiction over the place where the employee works” with the phrase “Office of General Counsel, Torts Law Group” as the Torts Law Group is the group within the Office of General Counsel that conducts preliminary investigations when a lawsuit against a VA employee is filed. Additionally, the sentences which describe the submission of a preliminary report to the General Counsel, the Regional Counsel investigation, and the submission of the investigation report to the General Counsel and to the appropriate U.S. Attorney are proposed to be removed from this paragraph. These procedures are no longer followed as the Office of General Counsel, Torts Law Group manages the process by which a VA employee requests representation from the U.S. Attorney's Office and handles all communications with the U.S. Attorney's office. For consistency, the phrase “Regional Counsel” is proposed to be replaced with “Torts Law Group” throughout paragraph (c).

In paragraph (d), the phrase “local Regional Counsel” is proposed to be replaced with “Office of General Counsel, Torts Law Group” and the last two sentences in this paragraph are proposed to be combined for nomenclature changes and readability. In paragraph (e), the phrase “specifically excluded under the provisions of 28 U.S.C. 2680(h)” is proposed to be replaced with “otherwise not actionable under the Federal Tort Claims Act” for readability and clarity. A misspelling in paragraph (e) is proposed to be corrected to read “cognizable.” Finally, the term “immunization” is proposed to be replaced with “immunity” in both paragraphs (c) and (d) for grammatical reasons.

The Office of General Counsel proposes amendments to §§ 14.615 through 14.617, “Administrative Settlement of Tort Claims Arising in Foreign Countries” to remove or correct outdated or inaccurate information. The language in § 14.615 “General” provides general information for filing tort claims involving the Department that arise in foreign countries. One amendment is proposed in paragraph (a) to remove the word “abroad” from the end of the sentence due to redundancy.

Significant amendments are proposed in § 14.616, “Form and place of filing claim.” This section outlines specific instructions for how claimants can submit a tort claim when the events described in the claim arose in a foreign country and involve the Department. Paragraph (a) includes a proposed amendment to combine the first two sentences and to remove the redundant phrase “sworn statement,” the outdated language of “submitted in duplicate” and “original copy of the claim,” and the vague phrase “at least.” Additional new language is proposed to provide guidance regarding the submission of a Standard Form 95 as the way to submit a claim in compliance with the instructions in the regulation. As a result of these revisions, the proposed new combined sentence in paragraph (a) will now read: “Claims arising under 38 U.S.C. 515(b) will be submitted on a Standard Form 95 or prepared in the form of a statement sworn to or affirmed before an official with authority to administer oaths or affirmations and will contain the following information . . .”

Additional nomenclature changes are proposed for § 14.616(a)(8) for readability and clarity purposes. The specific proposed edits include the removal of the word “official,” the addition of “(s)” to the word “employee,” and the addition of the phrase “Department of Veterans Affairs” after United States. The paragraph (a)(10) is proposed to be removed to reflect that claimants do not need to indicate the law applicable to a tort claim when they file a claim. As a result of the proposed removal of paragraph (a)(10), paragraph (a)(9) will now conclude this section.

Amendments in paragraph (b) of § 14.616 include the proposed addition of the phrase “or submitted directly to the Office of General Counsel, Torts Law Group” at the end of the first sentence to provide an additional option for submission of claims as the Torts Law Group handles the processing and investigations of tort claims for the Department. Paragraph (c)(1) is proposed to be amended by replacing the phrase “the like will, if possible, be obtained from disinterested parties” with the phrase “documented evidence of the damages must accompany the claim.” This proposed amendment is intended to remove the vague phrase “the like” and to clarify the specific documents that should be submitted for this type of claim. The Office of General Counsel also proposes to amend the second and third sentences of paragraph (c)(1) for readability and to remove outdated terms that reflect procedures related to the processing of paper copies of claims that are no longer utilized. Specifically, paragraph (c)(1) is proposed to be amended to replace the existing phrases “All evidence will be submitted in duplicate” and “Original evidence or certified copies shall be attached to the original copy of the claim, and simple copies shall be attached to the other copy of the claim” with the newly proposed sentence: “All evidence and certified copies must be attached to the original claim.” Finally, the last sentence of this section is proposed to be amended to replace the word “will” with the word “must” to clarify that English translations are required to be included with the claim so that there is no dispute regarding the language that describes the claim.

The only proposed amendment in paragraph (c)(2) of § 14.616 is the replacement of the phrase “the like” with the phrase “any other relevant evidence” for clarity and nomenclature reasons. The Office of General Counsel also proposes to delete paragraph (c)(5) “Damage to crops” as it is redundant to the prior paragraphs which outline procedures related to claims for property damage.

The Office of General Counsel proposes to amend § 14.617 “Disposition of Claims” to clarify the requirements of administrative tort claims in the Philippines and in countries other than the Philippines. This section provides guidance for how claims in foreign countries should be routed when received by employees of the Department or other employees of the Federal Government. Paragraph (a) includes a proposed amendment to remove the phrases “including a complete investigation report and a brief resume of applicable law” and “together with a recommendation as to disposition” to clarify that the facility does not need to send an investigation report, a summary of applicable law, or a recommendation of a disposition of the claim. These amendments are proposed to more accurately reflect the current process and procedures which describe the Office of General Counsel's Torts Law Group as the entity which prepares the investigation report, researches the applicable law, and proposes a disposition for the claim. The phrase “Office of General Counsel, Torts Law Group” is proposed to be included after the existing phrase “will be forwarded directly by the Director to the” to clarify the central role of the Torts Law Group in this process.

Further amendments are proposed for paragraph (b) to include the removal of the phrase “including a resume of applicable law and a recommendation regarding allowance or disallowance of the claim” as this language is outdated and does not reflect current procedures or practice. As stated previously, current practice does not involve the submission of a review of applicable law and a recommendation regarding the disposition of the claim by staff at the relevant American Embassy or Consulate. Finally, this section is amended to include “Torts Law Group, Office of” prior to “General Counsel, Department of Veterans Affairs, Washington, DC” as the Torts Law Group is the group within the Office of General Counsel that coordinates administrative tort claims from foreign countries other than the Philippines.

The Office of General Counsel proposes multiple amendments to the section of regulations that govern claims for damage to or loss of government property. Specifically, § 14.618 “Collection action” includes proposed amendments to reflect nomenclature changes and other minor edits. Proposed amendments to paragraph (a) include replacement of the phrase “Regional Counsel” with “Office of General Counsel” and inclusion of the phrase “or appropriate VA designee” before the phrase “will request payment in full.” This proposed amendment is intended to reflect that individuals other than those employed by the Office of General Counsel may request payment or other appropriate relief from the individual responsible for the damage to or loss of Government property. An additional proposed amendment includes the replacement of the phrases “amount of” and “liable therefore or such person's insurer” with new language to clarify available relief. Specifically, the proposed new language after the comma would read: “the Office of General Counsel or appropriate VA designee will request payment in full or other appropriate relief for the damage or loss from the responsible person or entity.” The proposed language is intended to clearly describe in plain terms that the Office of General Counsel or designee will seek reimbursement or other relief from the person responsible for damage to or loss of Government property.

Paragraph (b) of § 14.618 includes additional proposed amendments. The proposed edits include the replacement of “Regional” with “Office of General” and the addition of the phrase “or designee” after Counsel to indicate individuals other than those in the Office of General Counsel may collect, compromise, suspend, or terminate a collection action. This sentence is further proposed to be amended to update outdated citations and specifically, replace “§ 2.6(e)(4)(ii)” with “§ 2.6(e)(4)” and replace “§ 1.900 series” with “§ 1.900 et seq.” The second sentence is proposed to be amended to replace the phrase “and does not exceed $100,000, will be referred by the Regional Counsel” with the language “may be referred” to reflect that not all of these cases are automatically referred to the United States Attorney's Office. The phrase “U.S. attorney along with the information required by §§ 1.951” is proposed to be replaced with “United States Attorney's Office, in accordance with §§ 1.950” to spell out the abbreviation for United States and to correct an outdated citation. Finally, the last sentence in paragraph (b) that begins with “Any claim in excess of $100,000” and the entirety of paragraphs (c) and (d) are proposed to be removed. This language is proposed to be removed as it is redundant with existing language in § 2.6 and § 14.619 and does not reflect current practices or procedures.

This rule proposes to revise § 14.619, “Collection Action” to update references to other offices, remove obsolete material and references, and clarify and streamline policies and procedures. The Federal Medical Care Recovery Act (“FMCRA”), 42 U.S.C. 2651 et seq., and 38 U.S.C. 1729 authorize the Department to recover from third parties the costs of medical care or services furnished or to be furnished to an individual by the Department or paid for or to be paid for on behalf of an individual by the Department. In the proposed rule, the Office of General Counsel would revise § 14.619, which establishes the Office of General Counsel's ability to assert a claim, and authorize the Office of the General Counsel to collect, compromise suspend, or terminate collection activity as well as to refer cases to the Department of Justice to protect the government's interest. This rulemaking proposes to amend § 14.619 to clarify VA's right of recovery under 42 U.S.C. 2651 and 38 U.S.C. 1729, as well as to further clarify individual's duty to notify and cooperate with VA, and to describe legal remedies to effect recovery. Paragraph (a) is proposed to be amended to include definitions of the terms “Responsible Official”, “third party” and “individual” as well as to define medical care or services for which the Department may recover.

Paragraph (b) is proposed to be amended to clarify the duty of Veterans, Veteran beneficiaries and those individuals acting on their behalf to furnish requested information, notify VA of settlements and offers of settlement and cooperate with prosecution of all claims and actions by the United States against third persons under the authority delegated by the Secretary to the Office of General Counsel. See, 38 CFR 2.6(e)(3) and (9) as well as the authority under 28 CFR 43.1 and 43.2. A new paragraph (c) is proposed to be added to clarify assertion of claims on behalf of the United States, and the calculation of charges in accordance with Federal law and the implementing regulations cited. A new paragraph (d) is proposed to be added to clarify the authority to collect, compromise, settle, or waive any claim, and defines the information necessary for a request to compromise or waive a claim. This new paragraph (d) also clarifies that claims cannot be compromised in consideration of private attorneys' fees. Finally, a new paragraph (e) is proposed to provide a non-exhaustive list of legal remedies to effect recovery of a claim asserted under this section.

Additional amendments are proposed for the regulations in the “Personnel Claims” section to reflect nomenclature changes and substantive updates. These regulations describe procedures for managing claims made by Department employees for damage to or loss of employees' personal property incident to their employment. The language in § 14.664 “Scope of authority and effective date” is proposed to be amended to replace the reference to “Pub L. 88 558 (78 Stat. 767), approved August 31, 1964, as amended” with the updated citation of “The Military Personnel and Civilian Employees' Claims Act (MPCECA) of 1964, 31 U.S.C. 3721”. The phrase “for not more than” is proposed to be replaced with “not to exceed” for clarity and the phrase “civilian officer or” is proposed to be removed as the differentiation between civilian and non-civilian officers is not applicable to VA. This section is also proposed to be amended to replace the phrase “Deputy General Counsel, Assistant General Counsel (Professional Staff Group III), and the Deputy Assistant General Counsel, of said staff group and the Regional Counsel” with the new phrase “the Principal Deputy General Counsel, the Deputy General Counsel for Legal Operations, and the Chief Counsel, Torts Law Group.” This amendment is proposed to reflect the updated names of positions in the Office of General Counsel and to clarify where these claims should be investigated. Additionally, this proposed amendment is intended to reflect that OGC's Torts Law Group handles MPCECA claims as a result of a recent reorganization. Similar amendments are proposed throughout this section to reflect that change, including elimination of the reference to “appropriate Regional Counsel” in what was 14.665(c), and substitution of the phrase “Torts Law Group” for “Regional Counsel having jurisdiction” in 14.666(a) and in other references to “Regional Counsel” in the Title and paragraphs (a) and (b) in 14.666.

In § 14.665 “Claims,” the phrase “in writing” is proposed to be removed from the first sentence as it is outdated. Additionally, the phrase “or VA Form 4629, Claim for Reimbursement for Damaged or Destroyed Personal Property for property destroyed or damaged by a patient while the employee was engaged in the performance of official duties” is proposed to be added to the first sentence to explain that an additional form can be used to submit a claim under MPCECA. The second sentence is proposed to be revised to state that “The form will be submitted to the facility Director or designee of the VA facility where the claim originates within 2 years after the incident that caused the loss or damage, or after the employee discovers the loss or damage.” These revisions are intended to remove an outdated reference to “personnel” and to remove reference to language regarding armed conflicts and other military-related language that is not applicable to VA. This section includes further proposed revisions to remove reference to officer in the third sentence and to replace the phrases “the surviving spouse, children, father or mother or both, or brothers or sisters or both” with the phrase “the employee's survivors in the following order of precedence: spouse, child, parent, or sibling” for clarity. As a result of this revision, the sentence “Claims of survivors shall be settled and paid in the order named” is proposed to be removed as it is redundant to the prior phrase “order of precedence.”

Paragraphs (b) and (c) are proposed to be combined into one new paragraph (b), which would include multiple proposed revisions to explain responsibility for investigation and evaluation of the merits of these claims. The newly combined paragraph (b) includes edits to the first sentence which is proposed to begin with the following phrase: “The VA facility Director or designee receiving the claim will ascertain if such claim is complete.” The last sentence in the newly combined paragraph (b) starting with the phrase “The completed investigation” is proposed to be removed as it describes an outdated process that does not reflect current procedures. Finally, this section is proposed to be revised to update the citation to 38 U.S.C. 703(e) in paragraph (a)(4).

Significant revisions are proposed in § 14.666 to reflect that Torts Law Group is the OGC office which now handles or may be consulted regarding these claims. The first paragraph is revised to include the new language of: “Torts Law Group is available for consultation if requested and as needed by the facility's human resources office.” The second sentence is proposed to be revised to explain when additional investigation by Torts Law Group may be necessary by including the following proposed additional language at the beginning of the second sentence: “If, after consultation from the investigating facility or with the Torts Law Group, it is determined by the Torts Law Group that the facts or amount in controversy requires further input or investigation from the Torts Law Group.” The sentence beginning with the phrase “If the claimant has a potential claim for indemnification” is proposed to be removed as the description of the potential claims against “other than the United States” appears to relate to military personnel and is not applicable to VA. The last sentence is proposed to be revised to include the phrase “Torts Law Group may be consulted to” before the phrase “ascertain that the claimant has filed a timely proper claim” to clarify that Torts Law Group's involvement is not required unless requested by the relevant facility.

Finally, the language in paragraph (b) is proposed to be removed as not all MPCECA claims are sent to Torts Law Group for review and thus, input regarding payments of claims is not needed.

In § 14.667 “Claims payable,” the phrase “and does not exceed $40,000” is proposed to be added to the end of the sentence in paragraph (a)(1) to reflect the maximum amount that can be paid for an MPCECA claim per the statutory language in 31 U.S.C. 3721. The language in paragraph (a)(3) “Did not occur at quarters occupied within the 50 States or the District of Columbia that were not assigned to the claimant or otherwise provided in kind by the United States” is proposed to be removed as this language is applicable to military quarters and is not relevant to VA. New replacement language in paragraph (a)(3) is proposed to state “The claim is substantiated by proper and convincing evidence” as this language is specifically mentioned in the current policy on MPCECA claims. Paragraph (a)(4) includes nomenclature changes for clarity and consistency including adding the phrase “or wrongful” before the phrase “act of the claimant” and deleting “or employee.” Finally, reference to 38 U.S.C. 703(a)(5) (§ 17.78 of this chapter) is proposed to be replaced with 38 U.S.C. 703(e) to reflect the accurate citation.

Amendments are proposed for § 14.668 “Disposition of claims,” including in paragraph (b)(1) to add the phrase “(where applicable)” after the “Reimbursement in kind” as Torts Law Group is not authorized to process or permit “in kind” reimbursements. This paragraph is further proposed to be revised to replace the phrase “request the Director, Supply Service, Veterans Health Services and Research Administration, to procure” with the phrase “facilitate the procurement of” as the position references in the current regulation are outdated. Paragraph (b)(2) is proposed to be revised to replace outdated phrases and terms including substituting the word “payment” for the word “check,” the phrase “Fiscal office” for “Finance activity,” and the phrase “facility” for “installation.” Similarly, the phrases “on SF 1166, Voucher and Schedule of Payments” and “Regional Disbursing Office” are proposed to be removed from paragraph (b)(2) as these terms are outdated and do not reflect current processes. The last phrase of the section is proposed to read “forwarded to the appropriate office for payment” to concisely describe this part of the process.

The language in § 14.669 “Fees of agents or attorneys; penalty” is proposed to include significant revisions including a new phrase at the beginning of the section which states, “Notwithstanding a contract, the representative of a claimant may not receive more than” to replace the prior redundant phrasing starting with “The Military Personnel and Civilian Employees' Claims Act of 1964.” Additional nomenclature changes are proposed in this sentence for clarity and readability to include replacement of the phrase “amount paid in settlement” with the word “payment,” and removal of the phrases “each individual” and “and settled.” Further, the phrase starting with “the Act shall be paid” is proposed to be replaced with the citation for the Act “31 U.S.C. 3721” and the phrase “rendered in connection with that claim” is proposed to be replaced with the phrase “related to the claim.” Finally, the last sentence is proposed to be replaced with the following sentence “A person violating this provision shall be fined not more than $1,000” for readability and clarity.

The Office of General Counsel also proposes amendments to the set of regulations which govern the testimony of Department employees and production of Department records in certain legal proceedings as defined in the regulations.

In § 14.801 “Applicability,” the regulation which defines who these procedures apply to and in which situations, multiple changes are proposed to improve readability. Specifically, the following changes are proposed: (1) in paragraph (b)(2)(i), the word “or” is replaced with “and”; (2) in paragraph (b)(3), the word “personnel's” is replaced with the word “individual's;” (3) in paragraph (c)(2), the phrase “in appropriate cases” is removed as it is vague and undefined language; and (4) in paragraph (c)(3), the phrase “as to them” is deleted in the parenthetical to remove extraneous and confusing language.

Additional amendments are proposed to § 14.802 “Definitions,” which defines terms that are used throughout this regulation. Specifically, in paragraph (c), the phrase “official of the VA” is proposed to be replaced with “VA official” to reduce extraneous language. The proposed change to paragraph (f) will update the reference to “televised or videotaped testimony” to “video or video recorded testimony.” Additionally, the Office of General Counsel proposes to include a new definition in paragraph (h) to define “Designated VA Official.” The new language is proposed to state: “(h) Designated VA Official. VA official authorized to make the determinations provided in § 14.807. Other than for personnel in the Office of the Inspector General (OIG), the General Counsel or their designee is the Designated VA Official. For personnel in the OIG, the Counselor to the Inspector General or an attorney designated by the Counselor to the Inspector General, is the Designated VA Official authorized to make the determinations provided in § 14.807, and that official will keep the General Counsel informed of such determinations for purposes of litigation or claims of privilege.” The proposed addition of this definition in paragraph (h) is intended to ensure that the official authorized to make determinations provided in § 14.807 is specifically named and described. The use of this specific title of “Designated VA Official” is intended to promote uniformity and consistency throughout this set of regulations.

The Office of General Counsel proposes to amend § 14.803 “Policy” for readability, coherence, and consistency. This regulation establishes the Department's policy regarding requests for documents and testimony. That policy is to comply with the requests as authorized in accordance with these regulations and not otherwise inhibit employees' access to the courts as citizens or in their private capacities or to deny Veterans' access to the courts. Specifically, in paragraph (a), the phrase “the determining official” is proposed to be replaced with “Designated VA Official” as this is the individual defined and referred to in § 14.802(h). This paragraph includes additional proposed amendments including modifying and moving the phrase “testifying or producing records will have on the ability of the agency or VA personnel to perform their official duties” from the end of the sentence to the middle of the sentence. As a result of this proposed amendment, the sentence will now end with the phrase “as well as in future cases generally, based on the factors set forth in § 14.804.”

The language in § 14.804, “Factors to consider” includes one proposed nomenclature amendment for consistency purposes. This regulation lists the specific factors that the Designated VA Official uses when determining whether to approve or deny a request for documents or testimony made under these regulations. The first sentence is proposed to be amended to replace the phrase “VA personnel responsible for making the decision” with “the Designated VA Official” for consistency with the rest of the regulations in this section.

Additional proposed amendments are included in § 14.805 “Contents of a demand or request,” a regulation which addresses the information that should be included in any demand or request for testimony or documents sent to the Department under these regulations. Specifically, the phrase “if that is not feasible, in, or accompanied by” is proposed to be removed as it is extraneous language and the phrase “a summary” is proposed to be replaced with the word “summarizing.” This section is proposed to be further amended to insert a period after the phrase “legal proceedings” and the new proposed sentence after the period will start with the phrase “The affidavit or written statement shall contain.” These proposed changes are intended to improve readability and coherence.

The language in § 14.807 “Procedure when demand or request is made” is proposed to be amended for readability, coherence, and nomenclature. This section describes the procedures that VA employees should follow when a demand or request for testimony or records is received and includes instructions for notifying leadership, the Designated VA Official, and the Department of Justice, and guidelines for interacting with a court of competent jurisdiction or other appropriate authority. In paragraph (a), the phrase “is made” is proposed to be moved to before “in connection with legal proceedings” for readability. The second sentence proposes to replace “responsible VA official designated in § 14.807(b)” with “Office of General Counsel” to reflect current procedures that involve the Office of General Counsel as the central point of contact responsible for managing these types of requests and demands.

In paragraph (b) of § 14.807, the phrase beginning with “In response to a demand or request for the production of records or the testimony of VA personnel, other than personnel in the Office of the Inspector General (OIG)” is proposed to be replaced with “The Designated VA Official shall” as that is the individual specifically designated in § 14.802(h) to make the determinations regarding testimony provided or documents produced in these matters. The second sentence beginning with “For personnel in the OIG” is proposed to be removed as this information is now addressed in the proposed definition for “Designated VA Official” in § 14.802(h).

Additional changes are proposed in § 14.807(f). The last sentence in paragraph (e) is proposed to be amended to begin with the phrase “However, if directed by the Designated VA Official.” As a result of this new language, the word “however” is proposed to be deleted before the phase “the affected VA personnel” to avoid redundancy. The word “however” in paragraph (f)(1) and the word “then” in paragraph (f)(2) are proposed to be removed for readability.

The language in § 14.808 is proposed to be amended for nomenclature, clarity, and consistency purposes. This regulation provides procedures for the approval of testimony, the management of court orders for testimony, and the appropriate responses for expert or opinion testimony about official VA information, subjects, or activities, when such testimony was not previously approved. The specific proposed amendments include changing the title of § 14.808 to include the phrase “or fact” so that the new title would read “Expert, opinion, or fact testimony.” This amendment is intended to describe the contents of this section more accurately. In the second sentence in paragraph (a), the phrase “responsible VA official designated in § 14.807(b)” is proposed to be replaced with the term “Designated VA Official” as that is the individual defined in the proposed § 14.802(h) who authorizes testimony or the production of documents under this regulation. The word “however” is proposed to be moved from the middle of the last sentence to the beginning of the sentence such that the last sentence would start with the phrase: “However, if directed by.”

A new paragraph (e) is proposed to be included in § 14.808 to address fact testimony and it would state: “If an employee is authorized to give fact witness testimony in a legal proceeding not involving the United States, the testimony, if otherwise proper, shall be limited to facts within the personal knowledge of the employee that are not classified, privileged, or protected from disclosure under applicable law or regulation. If asked to provide factual testimony that the employee believes may be classified, privileged, or protected from disclosure under applicable law or regulation, then the witness shall: (1) Respectfully decline to answer on the grounds that such testimony is prohibited; and (2) Request an opportunity to consult with the Designated VA Official.” This proposed language is intended to provide more specific guidance regarding the scope of fact testimony that VA employees are authorized to provide and instructions on how to handle questions that may solicit fact testimony that is unauthorized due to an applicable law or regulation.

The Office of General Counsel proposes to amend the language in § 14.810, “Fees,” which provides guidance regarding the fees VA may charge when testimony is authorized and provided under these regulations. In paragraph (a), the phrase “particularly as expert witnesses” is proposed to be removed from the first sentence to reduce confusion regarding the applicability of this section as it applies to all testimony and not just expert testimony. The third sentence is proposed to be amended to remove the extraneous phrasing of “establish a” and “for providing.” The newly proposed sentence states: “Consequently, these are the sort of services for which VA may charge under 31 U.S.C. 9701.”

The next sentence in § 14.810(a) is also proposed to be re-written to remove extraneous words and improve clarity by referencing fees associated with the Department's FOIA regulation at 38 CFR 1.561. Specifically, the existing sentence “The responsible VA official will determine all fees associated with §§ 14.800 through 14.810, and shall timely notify the requester of the fees, particularly those which are to be paid in advance” is proposed to be replaced with: “Where a determination is made to comply with the demand, order or request pursuant 38 CFR 14.807(e) or 14.808, the Designated VA Official will calculate fees consistent with 38 CFR 1.561(d), (f) through (l) and shall timely notify the requester of the fees, particularly those which are to be paid in advance.” An additional new sentence is proposed in this paragraph to provide specific guidance for how fees should be calculated for requesters in the context of the FOIA and the Department's corresponding regulations. That proposed new sentence would state: “For purposes of calculating fees all requesters under §§ 14.800 through 14.810 will be considered Commercial Use Requesters as defined by 38 CFR 1.561(c)(1).”

Additional amendments are proposed for paragraph (b)(1) which specifically outlines the types of costs that may be included in the fees charged to the requester under these regulations. Specifically, paragraph (b)(1) is proposed to be amended to delete the phrase “in whole or in part as to expert, opinion or policy matters” as this language is now redundant to language in prior sections. More language is proposed to be added in this paragraph to clarify that fees may be assessed for preparing the witness for testimony. Specifically, the phrase “preparing and” and the phrase “for testimony” are proposed to be added so that the proposed new sentence now reads: “When a request is granted under § 14.808 to permit VA personnel to testify, the requester shall pay to the government a fee calculated to reimburse the cost of preparing and providing the witness for testimony.”

Additional amendments are proposed for the lower-level paragraphs within paragraph (b)(1). One proposed amendment, in paragraph (b)(1)(i), is the addition of the word “order” after “demand” to reference the potential for court orders for testimony which may be managed in accordance with these regulations. Paragraph (b)(1)(ii) is proposed to be removed in its entirety as its description of charges for attorney time expended in reviewing the demand or request is redundant to the information provided in paragraph (b)(1)(i). The existing language in paragraph (b)(1)(iii) regarding expenses generated by materials and equipment used to search for and copy responsive information is also proposed to be removed as it is redundant to the information provided in paragraph (b)(1)(i) and is also covered in the newly proposed language in paragraph (a) regarding the calculation of fees in accordance with § 1.561. Due to the proposed removal of the existing language in paragraphs (b)(1)(ii) and (iii), amended language from the existing paragraph (b)(1)(iv) is proposed to be moved to (b)(1)(ii) so that the new paragraph (b)(1)(ii) now reads “the cost of the time expended to prepare the witness to testify.” The existing language in paragraph (b)(1)(v) is also proposed to be amended to change sentence structure and be moved to paragraph (b)(1)(iii). The language in paragraph (b)(1)(iii) is proposed to read: “Travel costs for VA personnel associated with providing testimony.”

In paragraph (b)(2), the phrase “necessary for such expert testimony” is proposed to be removed as the scope of this section applies to all requested testimony and not just expert testimony. Paragraph (f)(3) is proposed to be amended to add the phrase “in accordance with General Services Administration (GSA) policy” to clarify that GSA policy must be followed with regard to the rates for travel and per diem that will be funded by the requesting party.

Finally, the phrase “responsible VA official” has been replaced with “Designated VA Official” throughout §§ 14.805 through 14.810. In §§ 14.802, 14.807, and 14.810, the word “the” is proposed to be deleted before “VA” for consistency. In §§ 14.800 through 14.810, the phrase “this part” has been replaced with “§§ 14.800 through 14.810” for specificity.

This proposed rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

The Secretary hereby certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601-612). The factual basis for this certification is because this proposed rulemaking is merely internal to VA and does not involve any actions and/or processing by small entities. Therefore, pursuant to 5 U.S.C. 605(b), the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply.

Executive Order 12866 (Regulatory Planning and Review) directs agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 14094 (Executive Order on Modernizing Regulatory Review) supplements and reaffirms the principles, structures, and definitions governing contemporary regulatory review established in Executive Order 12866 of September 30, 1993 (Regulatory Planning and Review), and Executive Order 13563 of January 18, 2011 (Improving Regulation and Regulatory Review). The Office of Information and Regulatory Affairs has determined that this rulemaking is not a significant regulatory action under Executive Order 12866, as amended by Executive Order 14094. The Regulatory Impact Analysis associated with this rulemaking can be found as a supporting document at www.regulations.gov.

There are no Assistance Listing numbers and titles for the programs affected by this document.

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This proposed rule will have no such effect on State, local, and Tribal governments, or on the private sector.

Denis McDonough, Secretary of Veterans Affairs, approved and signed this document on October 8, 2024, and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs.

For the reasons set out in the preamble, the Department of Veterans Affairs proposes to amend 38 CFR parts 14 and 36 as follows:

In accordance with the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1371 et seq. ), and its implementing regulations, the U.S. Fish and Wildlife Service (Service) finalized incidental take regulations in 2021 (2021-ITRs) in response to a request from the Alaska Oil and Gas Association (AOGA). The request was for regulations to provide for the issuance of letters of authorization (LOA) for incidental take of small numbers of Pacific walruses and Southern Beaufort Sea (SBS) polar bears during specified oil and gas industry (“Industry”) activities in the Beaufort Sea and adjacent northern coast of Alaska over a 5-year period (86 FR 42982, August 5, 2021). The regulations were added to title 50 of the Code of Federal Regulations (CFR) in part 18 at subpart J and expire August 5, 2026. The 2021-ITRs authorize, via Service-issued LOAs, the incidental Level B harassment of up to 15 Pacific walruses and 92 SBS polar bears each year. The 2021-ITRs do not authorize (or facilitate the authorization of) any incidental Level A harassment or lethal take of any marine mammals during specified Industry activities, and any such take remains prohibited by the MMPA.

The term “take” as defined by the MMPA, means to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal (16 U.S.C. 1362(13)). Harassment, as defined by the MMPA, for activities other than military readiness activities or scientific research conducted by or on behalf of the Federal Government, means “any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild” (the MMPA defines this as Level A harassment); or “(ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering” (the MMPA defines this as Level B harassment) (16 U.S.C. 1362(18)).

The 2021-ITRs, along with the accompanying National Environmental Policy Act (NEPA) environmental assessment and Endangered Species Act (ESA) biological opinion, were challenged in litigation that commenced in the United States District Court for the District of Alaska (District Court). On March 30, 2023, the District Court issued summary judgment in favor of the Service upholding the 2021-ITRs. Portions of this ruling were appealed to the United States Court of Appeals for the Ninth Circuit (Appellate Court). On March 19, 2024, a three-judge panel of the Appellate Court issued an order that affirmed in part, and reversed in part, the District Court ruling. The Appellate Court panel declined to vacate the 2021-ITRs but issued a remand that requires the Service to conduct additional analysis and, depending on the results, potentially take regulatory action. In their remand order, specific only to polar bears, the Court directed (omitting internal references): “We . . . remand to the Service to offer a fuller explanation for its determination that no Level A incidents are expected during the period covered by the 2021 ITR. . . . In assessing the `negligible impact' prong on remand, the Service may, consistent with its expertise, emphasize certain outputs over others. However, given the MMPA's two-part conception of take, it must determine whether aggregating serious and non-serious Level A take yields a `reasonably likely' result. . . . If so (as the 75 percent figure proffered by Plaintiffs suggests), the Service will then need to determine (i) whether any Level A take predicted will affect only `small numbers' of bears and have a `negligible impact' on the subpopulation and, if so, (ii) whether to issue an updated ITR covering Level A take or no ITR at all.”

The Court further stated, “Hence, we . . . remand to the Service so that it may (i) aggregate serious and non-serious Level A take together . . . and (ii) determine whether the five-year risk of such take of a denning cub is `reasonably likely'. . . . To the extent that it is, the Service must then evaluate whether the five-year impacts of Level A take is `negligible' and whether such take will be of `small numbers' of bears and possibly amend or reverse the 2021 ITR.”

Accordingly, the Service has conducted additional analysis consistent with the Appellate Court's direction. As discussed below, this new analysis has resulted in preliminary determinations that, while no lethal take is predicted to occur, it is likely that Level A harassments of polar bears will occur, and that authorizing such take is consistent with MMPA standards. Therefore, this proposed rule, if finalized, would amend the 2021-ITRs to allow the issuance of LOAs authorizing take by Level A harassment of polar bears that may result from Industry activities.

Section 101(a)(5)(A) of the MMPA gives the Secretary of the Interior (Secretary) the authority to allow the incidental, but not intentional, taking of small numbers of marine mammals, in response to requests by U.S. citizens (as defined in 50 CFR 18.27(c)) engaged in a specified activity (other than commercial fishing) within a specified geographic region. The Secretary has delegated authority for implementation of the MMPA to the Service. According to the MMPA, the Service shall allow this incidental taking if we find the total of such taking for a 5-year period or less:

(1) will affect only small numbers of marine mammals of a species or population stock;

(2) will have no more than a negligible impact on such species or stocks;

(3) will not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence use by Alaska Natives; and

(4) we issue regulations that set forth:

(a) permissible methods of taking;

(b) other means of effecting the least practicable adverse impact on the species or stock and its habitat, and on the availability of such species or stock for subsistence uses; and

(c) requirements for monitoring and reporting of such taking.

If final regulations allowing such incidental taking are issued, we may then subsequently issue LOAs, upon request, to authorize incidental take during the specified activities.

The terms “negligible impact” and “unmitigable adverse impact” are defined in 50 CFR 18.27 (the Service's regulations governing small takes of marine mammals incidental to specified activities). “Negligible impact” is an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival. “Unmitigable adverse impact” means an impact resulting from the specified activity (1) that is likely to reduce the availability of the species to a level insufficient for a harvest to meet subsistence needs by (i) causing the marine mammals to abandon or avoid hunting areas, (ii) directly displacing subsistence users, or (iii) placing physical barriers between the marine mammals and the subsistence hunters; and (2) that cannot be sufficiently mitigated by other measures to increase the availability of marine mammals to allow subsistence needs to be met.

The term “small numbers” is also defined in § 18.27. However, we do not rely on that definition here as it conflates “small numbers” with “negligible impacts.” We recognize “small numbers” and “negligible impacts” as two separate and distinct requirements for promulgating incidental take regulations (ITRs) under the MMPA (see Natural Res. Def. Council, Inc. v. Evans, 232 F. Supp. 2d 1003, 1025 (N.D. Cal. 2003)). Instead, for our small numbers determination, we estimate the likely number of takes of marine mammals and evaluate if that take is small relative to the size of the species or stock.

The term “least practicable adverse impact” is not defined in the MMPA or its enacting regulations. The Service ensures the least practicable adverse impact by requiring mitigation measures that are effective in reducing the impact of Industry activities but are not so restrictive as to make Industry activities unduly burdensome or impossible to undertake and complete.

The MMPA does not require Industry to obtain an incidental take authorization; however, any taking that occurs without authorization is a violation of the MMPA. Since 1993, the oil and gas industry operating in the Beaufort Sea and the adjacent northern coast of Alaska has requested, and we have issued, ITRs for the incidental take of Pacific walruses and polar bears within a specified geographic region during specified activities. For a detailed history of our current and past Beaufort Sea ITRs, refer to the Federal Register at 81 FR 52276, August 5, 2016; 76 FR 47010, August 3, 2011; 71 FR 43926, August 2, 2006; and 68 FR 66744, November 28, 2003. The current regulations are codified at 50 CFR part 18, subpart J (§§ 18.121 through 18.129), and were published in the Federal Register on August 5, 2021 (86 FR 42982).

Our reanalysis, as discussed in detail below, indicates that Level A harassment of polar bears is reasonably likely to occur during the 5-year effective period of the 2021-ITRs. Therefore, we are proposing revisions to our regulations that, if finalized, would allow the Service to authorize take by both Level A and Level B harassment of polar bears. The lethal incidental take of polar bears would continue to be prohibited under this proposed revision, as would any Level A harassment or lethal take of Pacific walrus.

In conducting the additional analysis required by the Court's remand, the Service utilized best available scientific evidence. New information has been acquired and several advancements in the Service's analytical methods have been made subsequent to the promulgation of the 2021-ITRs. Many of these advancements were recently described and considered in an incidental harassment authorization that was issued by the Service to the Bureau of Land Management (88 FR 88943, December 26, 2023).

Specifically, the denning analysis described in the 2021-ITRs was conducted using the simulation of annual land-based maternal polar bear dens, spatially and temporally explicit descriptions of Industry activity, and predictions of polar bear response rooted in distributions established from den disturbance case studies ( see 86 FR 42982, August 5, 2021). For each of the five winter seasons analyzed in the 2021-ITRs, a series of dens were simulated by assigning each a location on the landscape, the sow's entrance date, the number of cubs she bore, the cub(s)' birthdate, den emergence date, and den departure date. We then overlaid the season's Industry activity across the same landscape and simulated whether polar bears within maternal dens that fell within a mile of activity responded to Industry-caused disturbances, and if so, how. Potential responses include disturbance of the sow inside the den, den abandonment, early emergence from the den, and early departure from the den site. Polar bear disturbance responses that occurred during the den establishment period were estimated to result in Level B harassment of the sow (no cubs are present during this period). Responses that occurred during the early denning period were estimated to result in Level B harassment of the sow and lethal take of the cub(s). Responses that occurred during the late denning period were estimated to result in Level B harassment of the sow and “serious Level A harassment” ( i.e., likely to result in cub mortality) of the cub(s). Responses during the post-emergence period were estimated to result in Level B harassment of the sow and “non-serious Level A harassment” ( i.e., not likely to result in cub mortality) of the cub(s).

The denning model was created to assess individual denning seasons and has included several levels of assumptions that generate an estimate of the potential annual impacts to denning polar bears that is somewhat conservative in that it is more likely to overstate, rather than understate, potential impacts. Use of this methodology achieved the objective of ensuring that actual impacts would not exceed what was contemplated in the incidental take authorization and would remain consistent with applicable MMPA thresholds. However, when applied to activities spanning a 5-year period, conservative aspects of certain model assumptions are amplified in a manner that risks unduly overstating projected aggregate impacts, raising the possibility that incidental take resulting from specified activities with acceptable levels of impacts could not be authorized, a scenario that would be inconsistent with the intent of section 101(a)(5)(A) of the MMPA. Thus, in complying with the remand's direction to aggregate Level A harassment estimates over a 5-year period, we reexamined the denning model to incorporate newly available scientific evidence and further refine certain model assumptions where appropriate to achieve greater accuracy.

Since 2021, LOA applicants have annually provided the Service with revised project descriptions and geospatial files that more precisely reflected the scope of their planned activities to be conducted during the ensuing (1-year) LOA period, as compared with the descriptions of specified activities provided during development of the 5-year ITRs. We used the revised files in the present analysis as they constitute the best available information concerning the scope of Industry's specified activities. We also account for AOGA's clarification that no onshore terrestrial seismic surveys will occur during the winter of 2024-2025. Potential seismic surveys in the winter of 2025-2026 remain within the scope of AOGA's specified activities and were analyzed during our re-analysis.

As a condition of their authorizations, LOA holders also submit records of all polar bear encounters during their activities. Using this information, and records from separate activities that were not operating under the 2021-ITRs, we incorporated data from recently observed dens into our disturbance probabilities and litter size distributions, modified the model to incorporate newly published data that describes the relationship between den emergence date, den departure time, and litter survival (Andersen et al. 2024), and updated the simulation of dens across the landscape to now include several previously unidentified areas that may sustain polar bear dens.

Four known dens (monitored in 2022 and 2023) have occurred near human activity since the promulgation of the 2021-ITRs. Of the four newly observed dens, three were extremely close to human activity (<50 meters), yet the sows remained in their dens until the late denning period. We updated polar bear disturbance probabilities and litter size distributions with the information from these dens, then reexamined the historic dens that were used to create disturbance probabilities. We found that the distances between human activity and polar bear dens that experienced an observed disturbance response during the early denning period were considerably closer than those dens that experience an observed disturbance response during other denning periods. Specifically, of the 15 dens within the case studies that were exposed to human activity during the early denning period, only 1 was potentially disturbed at a distance greater than 800 meters. This single den record also had imprecise information on the distance to human activity, so activity was assumed to occur within 1,610 meters of the den and was likely closer.

The historic dens analyzed during the den establishment, late denning, and post-emergence periods did not follow this pattern. For those dens, disturbance distances commonly exceeded 805 meters. Evidence derived from dens exposed to human activity during the early denning period, including both new den records and historic dens, illustrates the reluctance of sows to abandon their maternal den/cubs in response to exposure to stimuli from nearby activity and support the concept that sows may be more risk tolerant during the early denning period. Additionally, sows may be less affected by sound from outside activities during the early denning period because dens are typically closed during that time, which can reduce propagation of noise into the den (Owen et al. 2021). Given this evidence, we modified the denning analysis model to adjust the impact area for the early denning period to range from 0 to 805 meters. As a result, dens that were simulated to be within 805 meters of human activity could be disturbed during all denning periods, while dens between 806-1,610 meters of human activity could be disturbed only during the den establishment, late denning, and post-emergence periods.

Finally, the method for categorizing certain disturbance responses was modified to comply with the Court's direction to provide aggregated estimates of Level A harassment and to better align the model results with the categories of “take” defined in the MMPA. In the preamble to the 2021-ITRs, we drew a distinction between “serious Level A” and “non-serious Level A” harassment and largely addressed these categories separately. If a sow and cub(s) emerged early ( i.e., during the late denning period), the litter was assigned serious Level A harassment(s). If the sow and cub(s) departed the den site early ( i.e., during the post-emergence period), the litter was assigned non-serious Level A harassment(s). These categories were based on the historic den disturbance case studies. Now we omit the “serious”/“non-serious” dichotomy and instead report results that aggregate all estimated Level A harassments. If an exposure resulted in disturbance during either of these periods, we assigned a Level A harassment to each cub in the litter (table 1).

We also use newly described relationships between den emergence date, den departure time, and litter survival (Andersen et al. 2024) to assign litter survival rates to simulated dens that experienced Level A harassment, a method used in recent polar bear take authorizations (88 FR 88943, December 26, 2023). If an exposure resulted in a disturbance response during the late denning period, we first assigned that den a new random earlier emergence date. We then simulated whether that den was disturbed during the post-emergence period. Dens that were disturbed during the post-emergence period were also assigned a new random earlier den departure date. We relied on estimates of litter survival derived from empirical data from approximately 100 days post emergence (Andersen et al. 2024) to determine the fitness consequence of the Level A harassment, and we consider this information below when addressing the MMPA's negligible impact standard. This revised methodology provides a clearer and more in-depth understanding of the potential fitness consequence of polar bear disturbance.

As in the existing 2021-ITRs, some concepts and mitigation measures could potentially reduce impacts to polar bears, but they are not reflected in our take estimates because their mitigative benefit is not quantifiable. For example, LOA holders must train their staff to identify the characteristics of a polar bear den, and if a suspected den is identified, they must cease operations and notify the Service. However, the efficacy of this technique cannot be quantified and could not be accounted for in the model results. Consideration of the conservative nature of certain model assumptions along with qualitative factors suggests that if the actual number of Level A harassment events does not align with the median model output, the actual number of Level A harassment events would be fewer than modeled. However, we preliminarily find, based on best professional judgment, that Level A harassment is reasonably likely to occur, and is anticipated, during the 5-year period of the 2021-ITRs (table 2).

We base this conclusion on the strength of the modeled probability of Level A harassment (0.93), the estimated median number of harassments (5), and denning observations that have occurred within the area of the 2021-ITRs subsequent to the promulgation of the regulations in 2021. Of the four dens that have been observed within 1 mile of the human activity since 2021, two polar bear family groups appear to have spent less time at the den site during the post emergence period than average. Following the relationship between den emergence date and den departure date described by Andersen et al. (2024), the cubs in the early departing family groups may have experienced a reduction in fitness and, as a result, a temporary decrease in their probability of survival. The Service considers such reductions in fitness as “injuries” for the purposes of interpreting the MMPA's definition of Level A harassment.

Our reanalysis has led to the conclusion that Level A harassment of polar bears is reasonably likely to occur during the 5-year effective period of the 2021-ITRs. Due to this conclusion, and in light of the Court's remand, we propose to revise aspects of the 2021-ITRs that pertain to polar bears (but not Pacific walruses).

In conducting analysis for this proposed revision to the 2021-ITRs, we began by focusing on the impact of AOGA's specified activities that may occur during the 2 remaining years of the 2021-ITRs (which expire August 5, 2026), i.e., the activities to which revised regulations would apply. Using the updated information and denning model methodology described above, we estimated the potential Level B harassment, Level A harassment, and lethal take of denning polar bears that may occur as a result of these specified activities (table 3).

We propose a determination that AOGA's specified activities between December 1, 2024, and August 5, 2026, would incidentally take small numbers of SBS polar bears. For this determination, we consider whether the estimated number of marine mammals to be subjected to incidental take is small relative to the population size of the species or stock.

1. Within the specified geographical region, the area of Industry activity is expected to be small relative to the range of polar bears. SBS polar bears range well beyond the boundaries of the Beaufort Sea 2021-ITRs region. As such, the region represents only a subset of the potential area in which SBS polar bears may occur. Further, only seven percent of the 2021-ITRs area (518,800 ha of 7.9 million ha) is estimated to be impacted by Industry activities, even accounting for a disturbance zone surrounding industrial facility and transit routes. Thus, the area of Industry activity will be relatively small compared to the range of polar bears.

We expect that only small numbers of the SBS polar bear stock would be taken by the Industry activities specified in the 2021-ITRs because SBS polar bears are widely distributed throughout their expansive range, which encompasses areas beyond the Beaufort Sea 2021-ITRs region, meaning only a small proportion of the SBS polar bear stock will occur in the areas where Industry activities will occur, and the estimated number of polar bears that could be impacted by the specified activities is small relative to the size of the stock.

2. The estimated number of polar bears that will be harassed by Industry activity is small relative to the number of animals in their stocks. The Beaufort Sea 2021-ITRs region is completely within the range of the SBS stock of polar bears, and during some portions of the year polar bears can be frequently encountered by Industry. From 2014 through 2018, Industry made 1,166 polar bear reports comprising 1,698 bears. However, when we evaluated the effects upon the 1,698 bears observed, we found that 84 percent (1,434) did not experience take. Over those 5 years, Level B harassments of polar bears totaled 264, approximately 15.5 percent of the observed bears. No other forms of take or harassment were observed. Annually an average of 340 polar bears were observed during Industry activities. The number of observed Level B harassment events averaged 53 per year from 2014 to 2018. We conclude that over the remaining 2 years of the 2021-ITRs, Industry activities will result in a similarly small number of incidental harassments of polar bears.

Based on this information derived from Industry observations, along with the results of the Service's own predictive modeling analysis described above, we estimate that no more than 184 Level B harassment takes and 2 Level A harassment takes of polar bears will occur during the remaining 2 years of the 2021-ITRs, with no more than 92 Level B and 2 Level A harassment takes occurring within a single year. Conservatively assuming that, in a given year, each estimated take will accrue to a different individual polar bear, we note that take of 94 animals is 10.36 percent of the best available estimate of the current stock size of 907 animals in the SBS stock (Bromaghin et al. 2015, Atwood et al. 2020) ((94 ÷ 907) × 100 ≉ 10.36), and we propose a finding that this proportion represents a “small number” of polar bears of that stock. While we do not have data to estimate the frequency of repeated Level B harassments to the same polar bear in different years, polar bears exhibiting terrestrial habitat preferences may be harassed repeatedly. Thus, it is highly probable that the number of individuals experiencing Level B harassment over the 2024-2026 period is less than 184.

While the Service does not propose to retroactively authorize any incidental take, we also address the remand directive to “evaluate the five-year impacts of Level A take” and determine whether that take “will be of `small numbers' of bears.” Once again conservatively assuming that each estimated take over the 5-year period accrues to a different individual polar bear, we note that take is not anticipated to exceed 94 animals in any of the 5 years and take of 94 animals is 10.36 percent of the best available estimate of the current stock size of 907 animals in the SBS stock. This proportion represents a “small number” of polar bears of that stock. We conservatively base this preliminary determination on all the specified activities originally described in AOGA's request, i.e., without discounting the estimated take associated with specified activities that were planned for the initial 3 years of the 2021-ITR but did not actually occur.

We proposed a determination that AOGA's specific activities would result in a negligible impact to the SBS stock of polar bears. For our negligible impact determination finding, we consider the following:

1. The number of polar bears that use the terrestrial habitat of the North Slope is small in relation to the entire SBS stock. The distribution and habitat use patterns of polar bears indicate that relatively few polar bears will occur in the specified areas of activity at any particular time and, therefore, few polar bears are likely to be affected.

2. Mitigation measures will reduce potential impacts. If this proposed rule is finalized, the applicant will be required to adopt monitoring requirements and mitigation measures designed to reduce the potential impacts of their operations on polar bears. Den detection surveys for polar bears and adaptive mitigation and management responses based on real-time monitoring information (described in this proposed rule) will be used to avoid or minimize interactions with polar bears and, therefore, limit potential disturbance of these animals.

3. The majority of human-polar bear interactions will result in no effect or short-term, temporary behavioral changes. When developing estimates for Level B harassment, we have determined that there is a 99 percent chance that at least 81 percent of encounters with bears on the surface in the open water season and 63 percent of encounters with bears on the surface in the ice season are expected to result in no significant change in a biologically important behavior. The remainder of encounters are anticipated to result in short-term, temporary changes in behavior.

4. Few dens would occur in proximity to Industry activities. Our denning simulations show that on average six dens are estimated to occur within 1 mile of the specified activities during each of the next two denning seasons (2024-2025 and 2025-2026). This number represents roughly 5 percent of the approximately 120 SBS polar bear dens that are established each year. The mitigation measures required by the 2021-ITRs reduce the estimated number of Level A disturbed dens to 1.8 percent of the land-based dens and 0.9 percent of all dens in the SBS stock (figure 1).

5. Anticipated Level A harassments will not alter the distribution of cub survival probabilities for the SBS stock. We anticipate two Level A harassment events may occur as a result of the specified activities over a period of 2 years. The updated denning analysis model allows us to examine the simulated dens to estimate the probability of litter survival to 100 days using both their undisturbed and disturbed (if applicable) emergence and departure dates. With this information, we can determine the average decrease in survival probability that can be attributed to potential Industry disturbance. Only 0.9 percent of dens within the SBS stock are anticipated to experience Level A harassment annually. For those dens that experience harassment, the mean probability of litter survival before disturbance was 87.3 percent. After simulating disturbance, the mean probability of litter survival was 72.8 percent, a decrease of 14 percent. However, given the low percentage of SBS dens that are anticipated to experience Level A harassment, the 14 percent decrease does not alter or shift the overall survival probability distribution for the SBS stock (figure 2).

6. Lethal take via den abandonment is rare within the Southern Beaufort Sea stock. Records of den abandonment in the oilfield are rare—we have only 2 accounts of potential den abandonment within the 15 case studies used to develop early denning period disturbance rates. Applying the denning model, the greatest annual probability of lethal take in the final 2 years of the 2021-ITRs is 0.31. The aggregated probability of lethal take over a 2-year period is 0.45, indicating lethal take due to sow abandonment of the den and litter during the early denning period is unlikely. We do not believe the estimate of lethal take is inaccurate; however, it is potentially conservative.

7. We do not anticipate that loss of a cub or litter will adversely affect annual recruitment rates at the population level. If a den is disturbed and the disturbance resulted in cub mortality, such take would not be authorized under the revised 2021-ITRs. Any Level A harassment would be limited to only cubs during the denning period. Impacts to denning females, the demographic group most important to annual recruitment, would be limited to take by Level B harassment. Therefore, the immediate number of potentially available reproductive females that would contribute to recruitment for the SBS stock would remain unaffected if a den disturbance were to result in the mortality of the cubs. If a den disturbance were to result in the mortality of the entire litter, the female would be available to breed during the next mating season and produce another litter during the next denning season.

Cubs inherently cannot contribute to annual rates of recruitment until they have reached sexual maturity. Further, while adult male bears would contribute to the overall number of individuals in the population, they do not contribute significantly to annual rates of recruitment. While a very small decrease in the number of males in a breeding population may be a concern if the stock was at risk of inbreeding depression or allee effects, this is not the case in the SBS stock. Female cubs have the opportunity to reach sexual maturity and contribute to annual recruitment; however, natural rates of survival fluctuate in the SBS stock. As such, death of less than one female cub per year is within the natural variability found within the SBS stock and cannot be reasonably expected to cause an adverse impact on annual rates of recruitment.

Based on the low percentage of SBS stock polar bears potentially being removed from the stock if den disturbance were to result in the mortality of the cubs, and the expectation that the number of potentially available reproductive females that would contribute to recruitment would be unaffected by den disturbance, the Service does not anticipate that the loss of a cub or litter would adversely affect annual recruitment rates at the population level for the SBS stock of polar bears.

We reviewed the effects of Industry activities on polar bears, including impacts from surface interactions, aircraft overflights, marine vessel traffic, and den disturbance. Based on our review of these potential impacts, past monitoring reports, and the biology and natural history of polar bears, we conclude that any incidental take reasonably likely to occur as a result of specified activities would be limited to short-term behavioral disturbances and temporary reductions in fitness that would not affect the rates of recruitment or survival for the SBS stock of polar bears.

We have analyzed the potential impact of the proposed taking in light of other factors affecting SBS polar bears, including subsistence harvest and other human-caused removals as well as climate change. Climate change is a global phenomenon and was considered as the overall driver of effects that could alter polar bear habitat and behavior. The Service is currently involved in research to understand how climate change may affect polar bears. As we gain a better understanding of climate change effects, we will incorporate the information in future authorizations. While climate change and other ongoing factors pose significant challenges to SBS polar bears, we do not expect them to influence the degree of impacts ( i.e., short-term behavioral responses and temporary reductions in fitness) resulting from the specified activities or incidental harassment to be authorized under a revised ITR.

Our analysis indicates that the impacts of these specified activities over the remaining 2 years addressed by the 2021-ITRs cannot be reasonably expected to, and are not reasonably likely to, adversely affect the SBS stock of polar bears through effects on annual rates of recruitment or survival. We therefore propose a determination that the total of the taking estimated above and to be authorized via the revised 2021-ITRs will have no more than a negligible impact on the SBS stock of polar bears.

While the Service does not propose to retroactively authorize any incidental take, we also address the remand directive to “evaluate whether the five-year impacts of Level A take is ‘negligible.’ ” Because we do not anticipate adverse effects to the SBS stock through effects on annual rates or recruitment or survival over the remaining 2 years, and because the scope of specified activities and the extent of estimated impacts is largely consistent across each year of the 5-year period, we propose a determination that the total of the taking estimated above over the 5-year period cannot be reasonably expected to, and is not reasonably likely to, adversely affect the SBS stock of polar bears through effect on annual rates or recruitment or survival, and thus will have no more than a negligible impact on the SBS stock of polar bears. We conservatively base this preliminary determination on all the specified activities originally described in AOGA's request, i.e., without discounting the estimated impacts of specified activities that were planned for the initial 3 years of the 2021-ITR but did not actually occur.

We have not identified any means through which the Level A harassment described above, in combination with the Level B harassment already contemplated in the 2021-ITRs, is likely to reduce the availability of SBS polar bears to a level insufficient for harvest to meet subsistence needs. Thus, we preliminarily reaffirm our finding that the total taking will not have an unmitigable adverse impact on the availability of SBS polar bears or Pacific walruses for taking for subsistence uses.

We have not identified any additional ( i.e., not already incorporated into the 2021-ITRs) mitigation measures that are effective in reducing the impact of Industry activities but are not so restrictive as to make Industry activities unduly burdensome or impossible to undertake and complete. Thus, we preliminarily reaffirm our finding that the mitigation measures required by the 2021-ITRs will ensure the least practicable adverse impacts on SBS polar bears and Pacific walruses.

We have not identified any additional ( i.e., not already incorporated into the 2021-ITRs) monitoring or reporting requirements to better assess the effects of industrial activities, ensure that the number of takes and the effects of taking are consistent with that anticipated in the ITR, or detect any unanticipated effects on SBS polar bears or Pacific walruses.

In addition to proposing amendments to the regulations in 50 CFR part 18 to accomplish the regulatory revisions described above, we also propose regulatory revisions to update our regulations that carry out the Paperwork Reduction Act (PRA; 44 U.S.C. 3501 et seq. ). The proposed revisions to §§ 18.4, 18.129, and 18.152 that are set forth in the rule portion of this document are administrative and nonsubstantive. These proposed changes would serve only to update and streamline the regulatory text that ensures our regulations in 50 CFR part 18 are in compliance with the PRA.

If you wish to comment on this proposed rule or the associated draft environmental assessment, you may submit your comments by any of the methods described in ADDRESSES . Please identify if you are commenting on the proposed regulations, draft environmental assessment, or both, make your comments as specific as possible, confine them to issues pertinent to the proposed regulations, and explain the reason for any changes you recommend. Where possible, your comments should reference the specific section or paragraph that you are addressing. We will consider all comments that are received by the close of the comment period (see DATES ).

Comments, including names and street addresses of respondents, will become part of the administrative record. Before including your address, telephone number, email address, or other personal identifying information in your comment, be advised that your entire comment, including your personal identifying information, may be made publicly available at any time. While you can ask us in your comments to withhold from public review your personal identifying information, we cannot guarantee that we will be able to do so.

We have prepared a draft supplemental environmental assessment in accordance with NEPA (42 U.S.C. 4321 et seq. ). We have preliminarily concluded that the proposed revisions to additionally authorize two takes by Level A harassment of polar bears during the remaining 2 years of the 2021-ITRs would not significantly affect the quality of the human environment and, thus, preparation of an environmental impact statement for this proposed rule is not required by section 102(2) of NEPA or its implementing regulations. We are accepting comments on the draft environmental assessment as specified above in DATES and ADDRESSES .

Under the ESA, all Federal agencies are required to ensure the actions they authorize are not likely to jeopardize the continued existence of any threatened or endangered species or result in destruction or adverse modification of critical habitat. The polar bear is listed as a threatened species under the ESA at 50 CFR 17.11(h) with provisions issued under section 4(d) of the ESA at 50 CFR 17.40(q) and designated critical habitat for polar bear subpopulations in the United States at 50 CFR 17.95(a). On August 3, 2021, the Service issued a biological opinion on the 2021-ITRs, concluding that, “[Issuance of the 2021-ITRs] is not likely to jeopardize the continued existence of polar bears by appreciably reducing the likelihood of both survival and recovery of the species in the wild by reducing its reproduction, numbers, or distribution.” Because this proposed regulation change, if finalized, would allow both Level A and B taking of polar bears, whereas the 2021-ITRs provide for only Level B taking of polar bears, our Marine Mammal Management Office has re-initiated intra-Service ESA section 7 consultation regarding the effects of these proposed regulations with our Fairbanks' Ecological Services Field Office. We would complete the consultation prior to finalizing these proposed regulation revisions.

Executive Order (E.O.) 14094 amends and reaffirms the principles of E.O. 12866 and E.O. 13563 and states that regulatory analysis should facilitate agency efforts to develop regulations that serve the public interest, advance statutory objectives, and are consistent with E.O. 12866 and E.O. 13563, and the Presidential Memorandum of January 20, 2021 (Modernizing Regulatory Review). Regulatory analysis, as practicable and appropriate, shall recognize distributive impacts and equity, to the extent permitted by law. Executive Order 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this proposed rule in a manner consistent with these requirements.

We have determined that this proposed rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This proposed rule is not likely to result in a major increase in costs or prices for consumers, individual industries, or government agencies or have significant adverse effects on competition, employment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic or export markets.

We have also determined that this proposed rule would not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Oil companies and their contractors conducting exploration, development, and production activities in Alaska have been identified as the only likely applicants under the regulations, and these potential applicants have not been identified as small businesses. Therefore, neither a regulatory flexibility analysis nor a small entity compliance guide is required.

This proposed rule does not have takings implications under Executive Order 12630 because it authorizes the nonlethal, incidental, but not intentional, take of polar bears by Industry and thereby, exempts these companies from civil and criminal liability as long as they operate in compliance with the terms of their LOAs. Therefore, a takings implications assessment is not required.

This proposed rule does not contain policies with federalism implications sufficient to warrant preparation of a federalism assessment under Executive Order 13132. The MMPA gives the Service the authority and responsibility to protect polar bears.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ), this proposed rule would not “significantly or uniquely” affect small governments. A small government agency plan is not required. The Service has determined and certifies pursuant to the Unfunded Mandates Reform Act that this rulemaking would not impose a cost of $100 million or more in any given year on local or State governments or private entities. Therefore, this proposed rule is not a “significant regulatory action” under the Unfunded Mandates Reform Act.

It is our responsibility to communicate and work directly on a government-to-government basis with federally recognized Alaska Native Tribes in developing programs for healthy ecosystems. We seek their full and meaningful participation in evaluating and addressing conservation concerns for protected species. It is our goal to remain sensitive to Alaska Native culture, and to make information available to Alaska Tribal organizations and communities. Our efforts are guided by the following policies and directives:

(1) The Native American Policy of the Service (January 20, 2016);

(2) The Alaska Native Relations Policy (currently in draft form; see 87 FR 66255, November 3, 2022);

(3) Executive Order 13175 (January 9, 2000);

(4) Department of the Interior Secretary's Orders 3206 (June 5, 1997), 3225 (January 19, 2001), 3317 (December 1, 2011), 3342 (October 21, 2016), and 3403 (November 15, 2021) as well as Director's Order 227 (September 8, 2022);

(5) The Alaska Government-to-Government Policy (a departmental memorandum issued January 18, 2001); and

(6) the Department of the Interior's policies on consultation with Alaska Native Tribes and organizations.

We have evaluated possible effects of the proposed rule on federally recognized Alaska Native Tribes and ANCSA (Alaska Native Claims Settlement Act) Corporations. The Service has determined that authorizing two takes by Level A harassment of polar bears during the remaining 2 years of the 2021-ITRs, with no more than two Level A harassment takes occurring within a single year from the SBS stock of polar bears, would not have any Tribal implications or ANCSA Corporation implications and, therefore, government-to-government consultation or Government-to-ANCSA Corporation consultation is not necessary. However, we invite continued discussion through the public comment process.

The Department's Office of the Solicitor has determined that these proposed regulations do not unduly burden the judicial system and meet the applicable standards provided in sections 3(a) and 3(b)(2) of Executive Order 12988.

This proposed rule requests a revision to an existing information collection. All information collections (ICs) require approval under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). We may not conduct or sponsor, and you are not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB previously reviewed and approved the information collection requirements associated with incidental take of marine mammals in 50 CFR part 18, subparts J and L, and assigned OMB Control Number 1018-0070 (expires July 31, 2026).

In accordance with the PRA and its implementing regulations at 5 CFR 1320.8(d)(1), we provide the general public and other Federal agencies with an opportunity to comment on our proposal to revise OMB Control Number 1018-0070 and on our request for a new control number as described below. This input will help us assess the impact of our information collection requirements and minimize the public's reporting burden. It will also help the public understand our information collection requirements and provide the requested data in the desired format.

As part of our continuing effort to reduce paperwork and respondent burdens, and in accordance with 5 CFR 1320.8(d)(1), we invite the public and other Federal agencies to comment on any aspect of this proposed information collection, including:

(1) Whether or not the collection of information is necessary for the proper performance of the functions of the agency, including whether or not the information will have practical utility;

(2) The accuracy of our estimate of the burden for this collection of information, including the validity of the methodology and assumptions used;

(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and

(4) Ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of response.

Comments that you submit in response to this proposed rulemaking are a matter of public record. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

This is a nonform collection. Respondents must comply with the regulations at 50 CFR part 18, which outline the procedures and requirements for submitting a request. Specific regulations governing authorized incidental take of marine mammal activities are contained in 50 CFR part 18, subparts J (incidental take of polar bears and Pacific walruses in the Beaufort Sea) and L (incidental take of northern sea otters in the Gulf of Alaska). These regulations provide the applicant with a detailed description of information that we need to evaluate the proposed activity and determine if it is appropriate to issue specific regulations and, subsequently, LOAs. We use the information to verify the findings required to issue incidental take regulations, to decide if we should issue an LOA, and (if an LOA is issued) what conditions should be included in the LOA. In addition, we analyze the information to determine impacts to polar bears, Pacific walruses, northern sea otters, and the availability of those marine mammals for subsistence purposes of Alaska Natives.

In conjunction with this rulemaking, we propose the following revisions for OMB approval:

(1) Revise and renew OMB Control No. 1018-0070 to retain the currently approved ICs and burden estimates associated with 50 CFR part 18, subpart J—Beaufort Sea —This ITR in subpart J, issued to the Alaska Oil and Gas Association (AOGA) is effective August 5, 2021, through August 5, 2026. It authorizes the nonlethal incidental, but not intentional, take of small numbers of polar bear and Pacific walrus for oil and gas exploration, development, and production activities in the Beaufort Sea and adjacent northern coast of Alaska. Unless a new ITR is issued for subpart J, we will discontinue OMB Control No. 1018-0070 when the ITR expires in 2026.

We request OMB approval to renew the following ICs and to adjust the currently approved burden associated with the ICs in subpart J that will remain in OMB Control No. 1018-0070:

(A) Incidental Take of Marine Mammals—Application for Regulations —Regulations at 50 CFR part 18 require the applicant to provide information on the activity as a whole, which includes, but is not limited to, an assessment of total impacts by all persons conducting the activity. Applicants can find specific requirements in 50 CFR part 18, subpart J. These regulations provide the applicant with a detailed description of information that we need to evaluate the proposed activity and determine whether to issue specific regulations and, subsequently, LOAs. The required information includes:

1. A description of the specific activity or class of activities that can be expected to result in incidental taking of marine mammals.

2. The dates and duration of such activity and the specific geographical region where it will occur.

3. Based on the best available scientific information, each applicant must also provide:

a. An estimate of the species and numbers of marine mammals likely to be taken by age, sex, and reproductive conditions;

b. The type of taking ( e.g., disturbance by sound, injury or death resulting from collision, etc.) and the number of times such taking is likely to occur;

c. A description of the status, distribution, and seasonal distribution (when applicable) of the affected species or stocks likely to be affected by such activities;

d. The anticipated impact of the activity upon the species or stocks; and

e. The anticipated impact of the activity on the availability of the species or stocks for subsistence uses.

4. The anticipated impact of the activity upon the habitat of the marine mammal populations and the likelihood of restoration of the affected habitat.

5. The availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks, their habitat, and, where relevant, on their availability for subsistence uses, paying particular attention to rookeries, mating grounds, and areas of similar significance. (The applicant and those conducting the specified activity and the affected subsistence users are encouraged to develop mutually agreeable mitigating measures that will meet the needs of subsistence users.)

6. Suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species through an analysis of the level of taking or impacts and suggested means of minimizing burdens by coordinating such reporting requirements with other schemes already applicable to persons conducting such activity.

7. Suggested means of learning of, encouraging, and coordinating research opportunities, plans, and activities relating to reducing such incidental taking from such specified activities, and evaluating its effects.

8. Applicants must develop and implement a site-specific (or umbrella plan addressing site-specific considerations), Service-approved marine mammal monitoring and mitigation plan to monitor and evaluate the effectiveness of mitigation measures and the effects of activities on marine mammals and the subsistence use of these species.

9. Applicants must also provide trained, qualified, and Service-approved onsite observers to carry out monitoring and mitigation activities identified in the marine mammal monitoring and mitigation plan.

This information is necessary for the Service to anticipate the impact of the activity on the species or stocks and on the availability of the species or stocks for Alaska Native subsistence uses. Under requirements of the MMPA, we cannot authorize a take unless the total of all takes will have a negligible impact on the species or stocks and, where appropriate, will not have an unmitigable adverse impact on the availability of the species or stocks for subsistence uses. These requirements ensure that applicants are aware of related monitoring and research efforts they can apply to their situation, and that the monitoring and reporting that we impose are the least burdensome to the applicant.

(B) Incidental Take of Marine Mammals—Requests for LOA —LOAs, which may be issued only to U.S. citizens, are required to conduct activities pursuant to any specific regulations established. Once specific regulations are effective, the Service will, to the maximum extent possible, process subsequent requests for LOAs within 30 days after receipt of the request by the Service. All LOAs will specify the period of validity and any additional terms and conditions appropriate for the specific request. Issuance of LOAs will be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under the specific regulations.

(C) Incidental Take of Marine Mammals—Final Monitoring Report —The results of monitoring and mitigation efforts identified in the marine mammal monitoring and mitigation plan must be submitted to the Service for review within 90 days of the expiration of an LOA. Upon request, final report data must be provided in a common electronic format (to be specified by the Service). Information in the final (or annual) report must include, but is not limited to:

1. Copies of all observation reports submitted under the LOA;

2. A summary of the observation reports;

3. A summary of monitoring and mitigation efforts including areas, total hours, total distances, and distribution;

4. Analysis of factors affecting the visibility and detectability of walruses and polar bears during monitoring;

5. Analysis of the effectiveness of mitigation measures;

6. Analysis of the distribution, abundance, and behavior of walruses and/or polar bears observed; and

7. Estimates of take in relation to the specified activities.

(D) Polar Bear Den Detection Report —Holders of an LOA seeking to carry out onshore activities in known or suspected polar bear denning habitat during the denning season must make efforts to locate occupied polar bear dens within and near proposed areas of operation. They may use any appropriate tool, such as forward-looking infrared imagery and/or polar bear scent-trained dogs, in concert with denning habitat maps along the Alaskan coast.

1. In accordance with 50 CFR 18.128(b)(1) and (2), LOA holders must report all observed or suspected polar bear dens to us prior to the initiation of activities. We use this information to determine the appropriate terms and conditions in an individual LOA in order to minimize potential impacts and disturbance to polar bears.

2. Holders of an LOA seeking to carry out onshore activities during the denning season (November-April) must conduct two separate surveys for occupied polar bear dens in all denning habitat within 1.6 km (1 mi) of proposed activities using aerial infrared (AIR) imagery. Further, all denning habitat within 1.6 km (1 mi) of areas of proposed seismic surveys must be surveyed three separate times with AIR technology.

3. Flight crews will record and report environmental parameters including air temperature, dew point, wind speed and direction, cloud ceiling, and percent humidity, and a flight log will be provided to the Service within 48 hours of the flight.

(E) In-Season Monitoring—Activity Progress Reports —Holders of an LOA must:

1. Notify the Service at least 48 hours prior to the onset of activities;

2. Provide the Service weekly progress reports of any significant changes in activities and/or locations; and

3. Notify the Service within 48 hours after ending of activities.

(F) In-season Monitoring—Observation Reports —Holders of an LOA must report, within 48 hours, all observations of polar bears and potential polar bear dens, during any industry activity. Upon request, monitoring report data must be provided in a common electronic format (to be specified by the Service). Information in the observation report must include, but is not limited to:

1. Date, time, and location of observation;

2. Number of bears;

3. Sex and age of bears (if known);

4. Observer name and contact information;

5. Weather, visibility, sea state, and sea-ice conditions at the time of observation;

6. Estimated closest distance of bears from personnel and facilities;

7. Industry activity at time of sighting;

8. Possible attractants present;

9. Bear behavior;

10. Description of the encounter;

11. Duration of the encounter; and

12. Mitigation actions taken.

(G) Notification of LOA Incident Report —Holders of an LOA must report, as soon as possible, but within 48 hours, all LOA incidents during any Industry activity. An LOA incident is any situation when specified activities exceed the authority of an LOA, when a mitigation measure was required but not enacted, or when injury or death of a marine mammal occurs. Reports must include:

1. All information specified for an observation report;

2. A complete detailed description of the incident; and

3. Any other actions taken.

(H) Mitigation—Interaction Plan —All holders of an LOA must have an approved polar bear safety, awareness, and interaction plan on file with the Service's Marine Mammals Management Office and onsite and provide polar bear awareness training to certain personnel. Interaction plans must include:

1. The type of activity and where and when the activity will occur ( i.e., a summary of the plan of operation);

2. A food, waste, and other “bear attractants” management plan;

3. Personnel training policies, procedures, and materials;

4. Site-specific walrus and bear interaction risk evaluation and mitigation measures;

5. Bear avoidance and encounter procedures; and

6. Bear observation and reporting procedures.

(I) Mitigation—3rd Party Notifications —All applicants for an LOA must contact affected Alaska Native subsistence communities and hunter organizations to discuss potential conflicts caused by the activities and provide the Service documentation of communications.

(J) Mitigation—Requests for Exemption Waivers —Exemption waivers to the operating conditions in 50 CFR 18.126(c) may be issued by the Service on a case-by-case basis, based upon a review of seasonal ice conditions and available information on walrus and polar bear distributions in the area of interest.

(K) Mitigation—Plan of Cooperation —When appropriate, a holder of an LOA will be required to develop and implement a Service-approved plan of cooperation (POC).

1. The POC must include a description of the procedures by which the holder of the LOA will work and consult with potentially affected Alaska Native subsistence hunters and a description of specific measures that have been or will be taken to avoid or minimize interference with subsistence hunting of otters, walruses, and polar bears and to ensure continued availability of the species for subsistence use.

2. The Service will review the POC to ensure that any potential adverse effects on the availability of the animals are minimized. The Service will reject POCs if they do not provide adequate safeguards to ensure the least practicable adverse impact on the availability of walruses and polar bears for subsistence use.

(2) Revise OMB Control No. 1018-0070 to remove references to, and all burden associated with, information collections (ICs) in 50 CFR part 18, subpart K—Cook Inlet, to include updating the title of this collection —The ITR in subpart K, issued to Hilcorp Alaska, LLC, Harvest Alaska, LLC, and the Alaska Gasline Development Corporation on August 1, 2019, authorized the nonlethal, incidental, but not intentional, take of small numbers of northern sea otters ( Enhydra lutris kenyoni ) for activities associated with or in support of oil and gas exploration, development, production, and transportation in Cook Inlet, Alaska. This ITR expired on August 1, 2024, and is no longer active; therefore, we are removing the reference to the ICR, along with the associated burden, from OMB Control No. 1018-0070.

(3) Request a new control number for the currently approved ICs and burden estimates associated with 50 CFR part 18, subpart L—U.S. Coast Guard —We will submit a separate information collection request to OMB for approval that will contain the applicable ICs and associated burden for subpart L previously approved by OMB under OMB Control No. 1018-0070. The ITR in subpart L, effective May 19, 2023, authorizes the nonlethal, incidental, unintentional take by harassment of small numbers of northern sea otters (otters; Enhydra lutris kenyoni ) while engaged in activities associated with or in support of marine construction activities in the Gulf of Alaska. Unless a new ITR is issued for subpart L, we will discontinue the newly assigned control number when the ITR expires on May 19, 2028.

We propose to transfer the following currently approved ICs from OMB Control No. 1018-0070 into a new control number:

(A) Incidental Take of Marine Mammals—Application for Regulations —Regulations at 50 CFR part 18 require the applicant to provide information on the activity as a whole, which includes, but is not limited to, an assessment of total impacts by all persons conducting the activity. Applicants can find specific requirements in 50 CFR part 18, subpart J. These regulations provide the applicant with a detailed description of information that we need to evaluate the proposed activity and determine whether to issue specific regulations and, subsequently, LOAs. The required information includes:

1. A description of the specific activity or class of activities that can be expected to result in incidental taking of marine mammals.

2. The dates and duration of such activity and the specific geographical region where it will occur.

3. Based on the best available scientific information, each applicant must also provide:

a. An estimate of the species and numbers of marine mammals likely to be taken by age, sex, and reproductive conditions;

b. The type of taking ( e.g., disturbance by sound, injury or death resulting from collision, etc.) and the number of times such taking is likely to occur;

c. A description of the status, distribution, and seasonal distribution (when applicable) of the affected species or stocks likely to be affected by such activities;

d. The anticipated impact of the activity upon the species or stocks; and

e. The anticipated impact of the activity on the availability of the species or stocks for subsistence uses.

4. The anticipated impact of the activity upon the habitat of the marine mammal populations and the likelihood of restoration of the affected habitat.

5. The availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks, their habitat, and, where relevant, on their availability for subsistence uses, paying particular attention to rookeries, mating grounds, and areas of similar significance. (The applicant and those conducting the specified activity and the affected subsistence users are encouraged to develop mutually agreeable mitigating measures that will meet the needs of subsistence users.)

6. Suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species through an analysis of the level of taking or impacts and suggested means of minimizing burdens by coordinating such reporting requirements with other schemes already applicable to persons conducting such activity.

7. Suggested means of learning of, encouraging, and coordinating research opportunities, plans, and activities relating to reducing such incidental taking from such specified activities, and evaluating its effects.

8. Applicants must develop and implement a site-specific (or umbrella plan addressing site-specific considerations), Service-approved marine mammal monitoring and mitigation plan to monitor and evaluate the effectiveness of mitigation measures and the effects of activities on marine mammals and the subsistence use of these species.

9. Applicants must also provide trained, qualified, and Service-approved onsite observers to carry out monitoring and mitigation activities identified in the marine mammal monitoring and mitigation plan.

This information is necessary for the Service to anticipate the impact of the activity on the species or stocks and on the availability of the species or stocks for Alaska Native subsistence uses. Under requirements of the MMPA, we cannot authorize a take unless the total of all takes will have a negligible impact on the species or stocks and, where appropriate, will not have an unmitigable adverse impact on the availability of the species or stocks for subsistence uses. These requirements ensure that applicants are aware of related monitoring and research efforts they can apply to their situation, and that the monitoring and reporting requirements that we impose are the least burdensome to the applicant.

(B) Incidental Take of Marine Mammals—Requests for LOA —LOAs, which may be issued only to U.S. citizens, are required to conduct activities pursuant to any specific regulations established. Once specific regulations are effective, the Service will, to the maximum extent possible, process subsequent requests for LOAs within 30 days after receipt of the request by the Service. All LOAs will specify the period of validity and any additional terms and conditions appropriate for the specific request. Issuance of LOAs will be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under the specific regulations.

(C) Incidental Take of Marine Mammals—Final Monitoring Report —The results of monitoring and mitigation efforts identified in the marine mammal monitoring and mitigation plan must be submitted to the Service for review within 90 days of the expiration of an LOA. Upon request, final report data must be provided in a common electronic format (to be specified by the Service). Information in the final (or annual) report must include, but is not limited to:

1. A summary of monitoring efforts (hours of monitoring, activities monitored, number of protected species observers (PSOs), and, if requested by the Service, the daily monitoring logs).

2. A description of all project activities, along with any additional work yet to be done. Factors influencing visibility and detectability of otters ( e.g., sea state, number of observers, and fog and glare) will be discussed.

3. A description of the factors affecting the presence and distribution of sea otters ( e.g., weather, sea state, and project activities). An estimate will be included of the number of sea otters exposed to noise at received levels greater than or equal to 160 dBRMS re: 1 µPa (decibels root-mean squared referenced to 1 microPascal) (based on visual observation).

4. A description of changes in sea otter behavior resulting from project activities and any specific behaviors of interest.

5. A discussion of the mitigation measures implemented during project activities and their observed effectiveness for minimizing impacts to sea otters. Sea otter observation records will be provided to the Service in the form of electronic database or spreadsheet files.

(D) In-Season Monitoring—Activity Progress Reports —Holders of an LOA must:

1. Notify the Service at least 48 hours prior to the onset of activities;

2. Provide the Service weekly progress reports of any significant changes in activities and/or locations;

3. Injured, dead, or distressed sea otters that are not associated with project activities ( e.g., animals known to be from outside the project area, previously wounded animals, or carcasses with moderate to advanced decomposition or scavenger damage) must be reported to the Service within 24 hours of the discovery to either the Service MMM (1-800-362-5148, business hours); or the Alaska SeaLife Center in Seward (1-888-774-7325, 24 hours a day); or both. Photographs, video, location information, or any other available documentation must be provided to the Service.

4. Notify the Service within 48 hours after ending of activities.

(E) In-season Monitoring—Observation Reports —Holders of an LOA must report, within 48 hours, all observations of polar bears and potential polar bear dens, during any Industry activity. Upon request, monitoring report data must be provided in a common electronic format (to be specified by the Service). Information in the observation report must include, but is not limited to:

1. Date, time; the observer's locations, heading, and speed (if moving); weather; visibility; number of animals; group size and composition (adults/juveniles); and the location of the animals (or distance and direction from the observer);

2. Initial behaviors of the sea otters, descriptions of project activities and underwater sound levels being generated, the position of sea otters relative to applicable monitoring and mitigation zones, any mitigation measures applied, and any apparent reactions to the project activities before and after mitigation;

3. Distance from the vessel to the sea otter upon initial observation, the duration of the encounter, and the distance at last observation in order to monitor cumulative sound exposures; and

4. Any instances of animals lingering close to or traveling with vessels for prolonged periods of time.

(F) Notification of LOA Incident Report —Holders of an LOA must report, as soon as possible, but within 48 hours, all LOA incidents during any Industry activity. An LOA incident is any situation when specified activities exceed the authority of an LOA, when a mitigation measure was required but not enacted, or when injury or death of a marine mammal occurs. Reports must include:

1. All information specified for an observation report;

2. A complete detailed description of the incident; and

3. Any other actions taken.

(G) Mitigation—Interaction Plan —All holders of an LOA must have an approved polar bear safety, awareness, and interaction plan on file with the Service's Marine Mammals Management Office and onsite and provide polar bear awareness training to certain personnel. Interaction plans must include:

1. The type of activity and where and when the activity will occur ( i.e., a summary of the plan of operation);

2. Personnel training policies, procedures, and materials;

3. Site-specific sea otter interaction risk evaluation and mitigation measures;

4. Sea otter avoidance and encounter procedures; and

5. Sea otter observation and reporting procedures.

(H) Mitigation—3rd Party Notifications —All applicants for an LOA must contact affected Alaska Native subsistence communities and hunter organizations to discuss potential conflicts caused by the activities and provide the Service documentation of communications.

(I) Mitigation—Requests for Exemption Waivers —Exemption waivers to the operating conditions in 50 CFR 18.126(c) may be issued by the Service on a case-by-case basis, based upon a review of seasonal ice conditions and available information on marine mammal distributions in the area of interest.

(J) Mitigation—Plan of Cooperation —When appropriate, a holder of an LOA will be required to develop and implement a Service-approved plan of cooperation (POC).

1. The POC must include a description of the procedures by which the holder of the LOA will work and consult with potentially affected subsistence hunters and a description of specific measures that have been or will be taken to avoid or minimize interference with subsistence hunting of marine mammals and to ensure continued availability of the species for subsistence use.

2. The Service will review the POC to ensure that any potential adverse effects on the availability of the animals are minimized. The Service will reject POCs if they do not provide adequate safeguards to ensure the least practicable adverse impact on the availability of marine mammals for subsistence use.

Title of Collection: Incidental Take of Marine Mammals During Specified Activities, 50 CFR 18.27 and 50 CFR part 18, subpart J.

OMB Control Number: 1018-0070.

Form Numbers: None.

Type of Review: Revision of a currently approved collection.

Respondents/Affected Public: Oil and gas industry representatives, including applicants for ITRs and LOAs, operations managers, and environmental compliance personnel.

Total Estimated Number of Annual Respondents: 61.

Total Estimated Number of Annual Responses: 201.

Estimated Completion Time per Response: Varies from 1.25 hours to 150 hours, depending on activity.

Total Estimated Number of Annual Burden Hours: 1,426.

Respondent's Obligation: Required to obtain or retain a benefit.

Frequency of Collection: On occasion.

Total Estimated Annual Nonhour Burden Cost: $350,000.

Title of Collection: Incidental Take of Marine Mammals During Specified Activities, 50 CFR 18.27 and 50 CFR part 18, subpart L.

OMB Control Number: 1018-New.

Form Numbers: None.

Type of Review: New.

Respondents/Affected Public: Federal Government—U.S. Coast Guard.

Total Estimated Number of Annual Respondents: 10.

Total Estimated Number of Annual Responses: 22.

Estimated Completion Time per Response: Varies from 1.25 hours to 150 hours, depending on activity.

Total Estimated Number of Annual Burden Hours: 325.

Respondent's Obligation: Required to obtain or retain a benefit.

Frequency of Collection: On occasion.

Total Estimated Annual Nonhour Burden Cost: None.

Send your comments and suggestions on this information collection by the date indicated in DATES to the Service Information Collection Clearance Officer, U.S. Fish and Wildlife Service, 5275 Leesburg Pike, MS: PRB (JAO/3W), Falls Church, VA 22041-3803 (mail); or Info_Coll@fws.gov (email). Please reference OMB Control Number 1018-New/0070 in the subject line of your comments.

Executive Order 13211 requires agencies to prepare statements of energy effects when undertaking certain actions. This proposed rule provides exceptions from the MMPA's taking prohibitions for Industry engaged in specified oil and gas activities in the specified geographic region. By providing certainty regarding compliance with the MMPA, this proposed rule would have a positive effect on Industry and its activities. Therefore, this proposed rule is not expected to significantly affect energy supplies, distribution, or use and does not constitute a significant energy action. No statement of energy effects is required.

For a list of the references cited in this proposed rule, see Docket No. FWS-R7-ES-2024-0140, available at https://www.regulations.gov.

For the reasons set forth in the preamble, the Service proposes to amend part 18, subchapter B of chapter I, title 50 of the Code of Federal Regulations as set forth below: