On May 30, 2024, OPM issued a proposed rule (89 FR 46830) to abolish the Calhoun, AL, NAF FWS wage area and define Calhoun County, AL, to the Cobb, GA, NAF FWS wage area, and Jefferson County, AL, to the Madison, AL, NAF FWS wage area. The Federal Prevailing Rate Advisory Committee, the national labor-management committee responsible for advising OPM on matters concerning the pay of FWS employees, reviewed and recommended these changes by consensus.

The proposed rule had a 30-day comment period, during which OPM received no comments. Therefore, this final rule adopts the proposed rule at 89 FR 46830 without change.

Section 5343 of title 5, U.S. Code, provides OPM with the authority and responsibility to define the boundaries of NAF FWS wage areas. Any changes in wage area definitions can have the long-term effect of increasing pay for Federal employees in affected locations. OPM expects this final rule to impact approximately 21 NAF FWS employees. Considering the small number of employees affected, OPM does not anticipate this rule will substantially impact local economies or have a large impact in local labor markets. As this and future wage area changes may impact higher volumes of employees in geographical areas and could rise to the level of impacting local labor markets, OPM will continue to study the implications of such impacts in this or future rules as needed.

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

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

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

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

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires that agencies assess anticipated costs and benefits before issuing any rule that would impose spending costs on State, local, or tribal governments in the aggregate, or on the private sector, in any 1 year of $100 million in 1995 dollars, updated annually for inflation. That threshold is currently approximately $183 million. This rule will not result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, in excess of the threshold. Thus, no written assessment of unfunded mandates is required.

OMB's Office of Information and Regulatory Affairs has determined this rule does not satisfy the criteria listed in 5 U.S.C. 804(2).

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

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

This action, pursuant to 5 U.S.C. 553, amends regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This rule is issued under Marketing Order No. 984, as amended (7 CFR part 984), regulating the handling of walnuts grown in California. Part 984 (referred to as the “Order”) is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Board locally administers the Order and comprises growers and handlers of California walnuts operating within the area of production, and a public member.

The Agricultural Marketing Service (AMS) is issuing this final rule in conformance with Executive Orders 12866, 13563, and 14094. Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 14094 reaffirms, supplements, and updates Executive Orders 12866 and further directs agencies to solicit and consider input from a wide range of affected and interested parties through a variety of means. This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review.

This final rule has been reviewed under Executive Order 13175—Consultation and Coordination with Indian Tribal Governments, which requires Federal agencies to consider whether their rulemaking actions would have Tribal implications. AMS has determined that this rule is unlikely to have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.

This final rule has been reviewed under Executive Order 12988—Civil Justice Reform. Under the Order now in effect, California walnut handlers are subject to assessments. Funds to administer the Order are derived from such assessments. It is intended that the assessment rate will be applicable to all assessable California walnuts for the 2024-2025 marketing year, and continue until amended, suspended, or terminated.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This final rule increases the assessment rate for California walnuts handled under the Order from $0.011 per inshell pound, the rate that was established for the 2023-2024 and subsequent marketing years, to $0.0125 per inshell pound for the 2024-2025 and subsequent marketing years.

Sections 984.68 and 984.69 authorize the Board, with the approval of AMS, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Board are familiar with the Board's needs and with the costs of goods and services in their local area and are able to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting, and all directly affected persons have an opportunity to participate and provide input.

For the 2023-2024 and subsequent marketing years, the Board recommended, and AMS approved, an assessment rate of $0.011 per inshell pound of California walnuts within the production area. That rate continues in effect from marketing year to marketing year until modified, suspended, or terminated by AMS upon recommendation and information submitted by the Board or other information available to AMS.

The Board met on May 15, 2024, and unanimously recommended 2024-2025 marketing year expenditures of $19,886,800 and an assessment rate of $0.0125 per inshell pound of California walnuts for the 2024-2025 marketing year. In comparison, last year's budgeted expenditures were $16,811,250. The assessment rate of $0.0125 per inshell pound is $0.0015 higher than the rate currently in effect. The Board recommended increasing the assessment rate to better align assessment revenue with budgeted expenses, due in part to a smaller estimated crop. The Board projects handler receipts of 730,000 tons (equivalent to 1.46 billion pounds) of assessable California walnuts for the 2024-2025 marketing year, down from the approximately 820,000 tons (1.64 billion pounds) handled during the 2023-2024 marketing year.

The major expenditures recommended by the Board for the 2024-2025 marketing year include $13,330,200 for domestic marketing, $2,838,600 for employee expenses, $2,425,000 for production and post-harvest research, $435,000 for office expenses, $473,000 for travel and other operating expenses, and $385,000 for crop and acreage reporting. For comparison, budgeted expenses for these items during the 2023-2024 marketing year were $10,588,750, $2,472,500, $2,425,000, $350,000, $390,000, and $585,000, respectively.

The Board derived the recommended assessment rate by considering anticipated expenses, the estimated volume of assessable walnuts, and the amount of funds available in the authorized reserve. The estimated 730,000 tons (1.46 billion pounds) of California walnuts from the 2024-2025 marketing year crop is expected to generate approximately $18,250,000 in assessment revenue at the amended assessment rate (1.46 billion pounds multiplied by the $0.0125 assessment rate). The remaining $1,636,800 needed to cover budgeted expenditures will come from an approved administrative services agreement with the California Walnut Commission, which shares staff and office expenses with the Board. The income generated from assessments, along with non-assessment revenue, is expected to be sufficient to meet the Board's estimated program expenditures of $19,886,800. Funds available in the financial reserve (currently about $14,665,274) will be kept within the maximum permitted by the Order (approximately two years' budgeted expenses as authorized in § 984.69).

The assessment rate established herein will continue in effect indefinitely unless modified, suspended, or terminated by AMS upon recommendation and information submitted by the Board or other available information. Although this assessment rate will be in effect for an indefinite period, the Board will continue to meet prior to or during each marketing year to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Board meetings are available from the Board or AMS. Board meetings are open to the public and interested persons may express their views at these meetings. AMS will evaluate Board recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking would be undertaken as necessary. The Board's 2024-2025 marketing year budget, and those for subsequent marketing years, will be reviewed and, as appropriate, approved by AMS.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), AMS has considered the economic impact of this final rule on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are approximately 68 handlers subject to regulation under the Order and approximately 4,500 growers of California walnuts in the production area. At the time this analysis was prepared, the Small Business Administration (SBA) defined small agricultural service firms as those having annual receipts of less than $34,000,000 (North American Industry Classification System (NAICS) code 115114, Postharvest Crop Activities), and small agricultural producers of walnuts as those having annual receipts of less than $3,750,000 (NAICS code 111335, Tree Nut Farming) (13 CFR 121.201).

Data from USDA's National Agricultural Statistics Service (NASS), indicate a three-year average value of utilized walnut production of $828.2 million for the most recent seasons for which data is available (2020-2021 through 2022-2023 marketing years). Dividing that figure by the number of walnut growers (4,500) yields an average annual crop value per grower of approximately $184,000. This figure is well below the SBA small agricultural producer threshold of $3,750,000 in annual sales. Assuming a normal distribution, this provides evidence that a large majority of walnut growers would likely be considered small agricultural producers according to the SBA definition. Additionally, data from NASS's 2017 Agricultural Census show that 86 percent of California farms growing walnuts at the time had walnut sales of less than $1 million.

Based on information from the Board, approximately 78 percent of California's walnut handlers shipped assessable walnuts valued under $34 million during the 2023-2024 marketing year and would, therefore, be considered small handlers according to the SBA definition. Considering the abovementioned, it is reasonable to conclude that a substantial majority of both walnut growers and handlers would be considered small business entities according to current SBA definitions.

This final rule increases the assessment rate collected from handlers for the 2024-2025 and subsequent marketing years from $0.011 to $0.0125 per inshell pound of California walnuts. The Board unanimously recommended 2024-2025 marketing year expenditures of $19,886,800 and an assessment rate of $0.0125 per inshell pound of California walnuts. The $0.0125 assessment rate is $0.0015 higher than the rate previously in effect. The Board expects the industry to handle 730,000 tons (1.46 billion pounds) of California walnuts during the 2024-2025 marketing year. Thus, the $0.0125 per inshell pound assessment rate is expected to provide $18,250,000 in assessment income (1.4 billion pounds multiplied by $0.0125). The Board also expects to receive $1,636,800 from an administrative services agreement with the California Walnut Commission. Income derived from these sources should be adequate to meet budgeted expenditures for the 2024-2025 marketing year.

The major expenditures recommended by the Board for the 2024-2025 marketing year include $13,330,200 for domestic marketing, $2,838,600 for employee expenses, $2,425,000 for production and post-harvest research, $435,000 for office expenses, $473,000 for travel and other operating expenses, and $385,000 for crop and acreage reporting. For comparison, budgeted expenses for these items during the 2023-2024 marketing year were $10,588,750, $2,472,500, $2,425,000, $350,000, $390,000, and $585,000, respectively.

The Board recommended increasing the assessment rate to meet necessary expenses, due in part to a smaller estimated crop for the 2024-2025 marketing year. The Board estimates shipments for the 2024-2025 marketing year to be approximately 730,000 tons (equivalent to 1.46 billion pounds). Given the Board's estimate for 2024-2025 marketing year walnut shipments, the current assessment rate of $0.011 would generate $16,060,000 in assessment income (1.46 billion pounds multiplied by $0.011 assessment rate), which would not cover budgeted expenses. By increasing the assessment rate to $0.0125, assessment income is expected to be $18,250,000 (1.46 billion pounds multiplied by $0.0125 assessment rate). This amount should provide sufficient funds to meet anticipated 2024-2025 marketing year expenses without needing to draw from the Board's financial reserve.

Prior to arriving at this budget and assessment rate recommendation, the Board considered information from various sources, such as the Board's Executive Committee, and discussed various alternatives, including maintaining the current assessment rate of $0.011 per inshell pound of assessable walnuts and increasing the assessment rate by a different amount. However, the Board determined that the recommended assessment rate is necessary to effectively achieve the Board's goals of covering budgeted expenses for the 2024-2025 marketing year and maintaining adequate funds in its financial reserve. Consequently, these alternative assessment rates were rejected.

Based upon information from the National Agricultural Statistics Service (NASS), the average grower price reported for walnuts over the past three crop years (2020-2023) was approximate $1,093 per ton ($0.547 per pound). In order to determine the estimated assessment revenue as a percentage of the total grower revenue, we calculate the assessment rate ($0.0125 per inshell pound) divided by the grower price ($0.547 per pound) and multiply that number by 100. Therefore, estimated assessment revenue as a percentage of total grower revenue for the 2024-2025 marketing year is expected to be about 2.3 percent (0.0125/0.547 * 100 = 2.29)

This action increases the assessment obligation imposed on handlers. Assessments are applied uniformly on all handlers, and some of the costs may be passed on to growers. However, these costs are expected to be offset by the benefits derived by the operation of the Order.

The Board's meetings are widely publicized throughout the California walnut industry and all interested persons are invited to attend the meetings and participate in Board deliberations on all issues. Like all Board meetings, the May 15, 2024, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Finally, interested persons were invited to submit comments on this rule, including the regulatory and information collection impacts of this action on small businesses.

In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C. chapter 35), the Order's information collection requirements have been previously approved by OMB and assigned OMB No. 0581-0178, Vegetable and Specialty Crops. No changes in those requirements will be necessary as a result of this action. Should any changes become necessary, they would be submitted to OMB for approval.

This rule will not impose any additional reporting or recordkeeping requirements on either small or large California walnut handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

AMS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

AMS has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

A proposed rule was published in the Federal Register on August 16, 2024 (89 FR 66639). A 30-day comment period ending September 16, 2024, was provided to all interested persons to respond to the proposal. AMS received one comment in opposition to the proposal from a walnut grower who expressed that the Board should rely on financial reserve funds during difficult years, instead of increasing assessments, because the Board is “flush with money.” However, consideration of the Board's reserve fund was part of the Board's public deliberations. In recent years, the Board has relied more on its financial reserves to fund expenditures, and the current reserve balance is now below what the Board generally considers to be ideal. The Order authorizes the Board to maintain a financial reserve “not to exceed two years' budgeted expenses.” The Board's financial reserve at the end of the 2024-25 marketing year is expected to be approximately $14,665,274, which is within the maximum amount permitted under the Order. Accordingly, AMS made no changes to the rule as proposed.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: https://www.ams.usda.gov/rules-regulations/moa/small-businesses . Any questions about the compliance guide should be sent to Richard Lower at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

After consideration of all relevant material presented, including the information and recommendations submitted by the Board and other available information, AMS has determined that this rule is consistent with and will effectuate the declared policy of the Act.

For the reasons set forth in the preamble, the Agricultural Marketing Service amends 7 CFR part 984 as follows:

The Commission is amending its regulations to remove the requirement that the principal campaign committee of a candidate with multiple authorized committees must report information on FEC Form 3-Z.

Before promulgating rules or regulations to carry out the provisions of the Federal Election Campaign Act, the Commission transmits the rules or regulations to the Speaker of the House of Representatives and the President of the Senate for a thirty-legislative-day review period. 52 U.S.C. 30111(d). These final rules were transmitted to Congress on November 19, 2024.

The Federal Election Campaign Act (the “Act”)  1 and Commission regulations require each candidate to register a principal campaign committee within 15 days of becoming a candidate. 2 A candidate may also authorize other political committees to receive contributions or make expenditures on the candidate's behalf by designating the committees in writing and filing the designations with the candidate's principal campaign committee. 3

The Act requires “each designation, statement or report of receipts or disbursements made by an authorized committee” to be filed with the candidate's principal campaign committee. 4 The Act further requires each principal campaign committee, in turn, to “receive” these designations, statements and reports and to “compile and file” them pursuant to the Act. 5

In 1980, the Commission promulgated a regulation (11 CFR 104.3(f)) to implement these requirements: Section 104.3(f) requires each candidate's principal campaign committee to file reports submitted to it by the candidate's other authorized committees, along with its own report. 6 In addition, § 104.3(f) requires the principal campaign committee to file FEC Form 3-Z to report specific consolidated information gleaned from the authorized committees' reports when it submits those reports to the Commission. 7 It is this FEC Form 3-Z that the Commission is now removing.

When the Commission first started requiring FEC Form 3-Z, political committees filed their reports only in paper form and the Commission made the reports publicly available on paper and microfiche in the Commission's Public Records room. By requiring a candidate's principal campaign committee to consolidate information about the financial activity of all of the candidate's authorized committees on FEC Form 3-Z, the Commission made it easier for the public to obtain a comprehensive picture of the candidate's receipts and disbursements during the reporting period.

Public access to political committees' reports has expanded dramatically since 1980, however, due in large part to statutory revisions and technological developments. In 1999, Congress amended the Act to provide for electronic filing;  8 as a result, all political committees that have or reasonably expect to have contributions or expenditures exceeding $50,000 in a calendar year must electronically file their reports directly with the Commission, and other persons may do so if they choose. 9 Further, Congress amended the Act to require the Commission to make all reports filed electronically with the Commission publicly available on the internet within 24 hours of receipt and within 48 hours of receipt for reports not filed electronically. 10

More recently, Congress amended the Act to require the Commission to maintain a central website “to make accessible to the public all publicly available election-related reports and information” required to be filed under the Act. 11 The posted reports and related information can be searched, sorted, and downloaded. 12

On August 1, 2024, the Commission published in the Federal Register a notice of proposed rulemaking (“NPRM”) soliciting comments on whether it should remove the requirement that principal campaign committees file Form 3-Z in light of statutory changes and technological advances. 13 The NPRM comment period ended on September 3, 2024. The Commission received two substantive comments in response to the NPRM, both in favor of the Commission's proposal.

After reviewing the public comments received in response to the NPRM, the Commission is amending § 104.3(f) by eliminating the requirement that principal campaign committees file FEC Form 3-Z. Although FEC Form 3-Z served a useful purpose when it was introduced more than 40 years ago, the information that it provides essentially duplicates information that is now filed directly with the Commission and readily available to the public in a searchable, sortable, and downloadable format. Accordingly, FEC Form 3-Z has been rendered obsolete.

The Commission certifies that the amendment will not have a significant economic impact on a substantial number of small entities. The amendment will simplify the reporting requirements for a principal campaign committee of a candidate with multiple authorized committees. The change will not impose new recordkeeping, reporting, or financial obligations on any political committees. The Commission therefore certifies that the amendment will not have a significant economic impact on a substantial number of small entities.

For the reasons set out in the preamble, the Federal Election Commission amends 11 CFR part 104 as follows:

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus SAS Model Airbus A350-941 and -1041 airplanes. The NPRM published in the Federal Register on July 17, 2024 (89 FR 58081). The NPRM was prompted by AD 2024-0073, dated March 18, 2024, issued by EASA, which is the Technical Agent for the Member States of the European Union (EASA AD 2024-0073) (also referred to as the MCAI). The MCAI states that the maintenance procedure task of the galley lower attachment stud installation did not provide the required maximum distance between the top of the threaded sleeve and the top of the threaded stud, which could lead to a wrong installation of the lower attachment stud having part number (P/N) XP14-070-007800, P/N XP14-070-019100, P/N XP14-070-005400, P/N XP14-070-008400, and P/N XP14-070-001100 on the aft galley complex. The MCAI also states that the affected parts are the lower attachment stud having P/N XP14-070-007800, P/N XP14-070-019100, P/N XP14-070-005400, P/N XP14-070-008400, and P/N XP14-070-001100, for which the incomplete maintenance procedure task has been accomplished after the airplane date of manufacture and before January 2024; and the lower attachment stud having P/N XP14-070-019100, which has been installed after the airplane date of manufacture and before January 2024, in accordance with the instructions of Airbus Alert Operators Transmission A25P023-22, Revision 01, dated September 27, 2022.

In the NPRM, the FAA proposed to require a one-time inspection of the affected lower attachment studs on the aft galley complex, and depending on findings, accomplishment of applicable corrective actions, as specified in EASA AD 2024-0073. The FAA is issuing this AD to address possible wrong installation for the lower attachment stud having P/N XP14-070-007800, P/N XP14-070-019100, P/N XP14-070-005400, P/N XP14-070-008400, and P/N XP14-070-001100 on the aft galley complex. This condition, if not detected and corrected, could lead to galley module detachment, with possible consequent injury to cabin crew and passengers, and reduced evacuation capacity from the airplane in case of an emergency.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2024-1888.

The FAA received a comment from an individual who supported the NPRM without change.

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

EASA AD 2024-0073 specifies procedures for a one-time installation inspection of the lower attachment stud having P/N XP14-070-007800, P/N XP14-070-019100, P/N XP14-070-005400, P/N XP14-070-008400, and P/N XP14-070-001100 on the aft galley complex; and depending on findings (the distance between the top of the threaded sleeves and the top of the threaded studs exceeds specified limits), accomplishment of applicable corrective actions (tightening the applicable threaded stud(s)). This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 32 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 787-8, 787-9, and 787-10 airplanes. The NPRM published in the Federal Register on August 1, 2024 (89 FR 62685). The NPRM was prompted by a report that during manufacture of drag brace lower lock link assemblies for the MLG, a certain required inspection was not performed. In the NPRM, the FAA proposed to require doing a check of maintenance records or an inspection to determine if certain drag brace lower lock link assemblies are installed, and applicable on-condition actions. The FAA is issuing this AD to address unsafe condition on these products.

The FAA received comments from an individual who supported the NPRM without change.

The FAA received additional comments from three commenters, including Boeing, United Airlines, and American Airlines. The following presents the comments received on the NPRM and the FAA's response to each comment.

American Airlines, United Airlines, and Boeing requested that the affected landing gear drag brace lower lock link assembly part number be corrected from part number 531Z2010-501, to part number 513Z2010-501. American Airlines, United Airlines, and Boeing stated that paragraph (i) of the proposed AD contains a typo for the affected landing gear drag brace lower lock link assembly part number. The commenters stated that the part number listed in the proposed AD is 531Z2010-501, the correct part number is 513Z2010-501. American Airlines stated it reviewed Boeing Alert Requirements Bulletin B787-81205-SB320048-00 RB, Issue 001, dated November 20, 2023, and confirmed that the correct part number is 513Z2010-501. Boeing noted that the part number in the proposed AD does not match Boeing Alert Requirements Bulletin B787-81205-SB320048-00 RB, Issue 001, dated November 20, 2023.

The FAA agrees that the correct affected landing gear drag brace lower lock link assembly part number is 513Z2010-501. The FAA has revised paragraph (i) of this AD to reflect the correct part number.

American Airlines stated that it appears that an airworthiness directive is not necessary as the safety issue is being addressed between Boeing and the affected operator(s) via the alert service bulletin. American Airlines also stated that compliance will require the unnecessary burden at all worldwide operators and MROs ( i.e., certified repair stations) to create safeguards to look for these four serial numbers any time maintenance is performed on the life limited part component of the lock link assembly, the lower lock link assembly itself, the next higher assembly lock link assembly, the next higher assembly drag brace assembly, the next higher level landing gear, and the airplane throughout the remaining life of the entire 787 worldwide fleet. The FAA infers that American Airlines is requesting that the NPRM be withdrawn.

The FAA disagrees with the request to withdraw the NPRM. Operators are not required to accomplish Boeing Alert Requirements Bulletin B787-81205-SB320048-00 RB, Issue 001, dated November 20, 2023, until an AD mandates accomplishment. This AD addresses the identified unsafe condition by mandating the actions in that material, which ensures that the affected (unsafe) parts are removed from the airplanes identified in paragraph (g) of this AD. In addition, due to rotability of the affected parts, the parts installation prohibition specified in paragraph (i) of this AD is the only way to ensure the affected parts are not installed on all airplanes identified in paragraph (c) of this AD. The FAA has not changed this AD in this regard.

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

The FAA reviewed Boeing Alert Requirements Bulletin B787-81205-SB320048-00 RB, Issue 001, dated November 20, 2023. This material specifies procedures for doing a check of maintenance records or an inspection of the drag brace lower lock link assembly on the right and left MLG for affected serial numbers and applicable on-condition actions. On-condition actions include replacing any affected drag brace lower lock link assembly on the MLG with a serviceable drag brace lower lock link assembly.

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

The FAA estimates that this AD affects 156 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2023-05-08, Amendment 39-22377 (88 FR 20751, April 7, 2023) (AD 2023-05-08). AD 2023-05-08 applied to certain Airbus Canada Limited Partnership Model BD-500-1A10 and BD-500-1A11 airplanes. AD 2023-05-08 required revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations. The FAA issued AD 2023-05-08 to address reduced structural integrity of the airplane or reduced controllability of the airplane.

The NPRM published in the Federal Register on April 29, 2024 (89 FR 33300). The NPRM was prompted by AD CF-2023-69, dated October 5, 2023, issued by Transport Canada, which is the aviation authority for Canada (Transport Canada AD CF-2023-69) (also referred to as the MCAI).

In the NPRM, the FAA proposed to continue to require certain actions in AD 2023-05-08 and require revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations. The FAA is issuing this AD to address the unsafe condition on these products.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2024-1285.

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

The FAA received additional comments from Delta Air Lines (Delta). The following presents the comments received on the NPRM and the FAA's response to each comment.

Delta requested that the FAA update the language in the proposed AD to mandate Transport Canada AD CF-2023-69 via incorporation by reference (IBR) instead of mandating Airbus Canada Limited Partnership A220 Airworthiness Limitations, BD500-3AB48-11400-02, Issue 017.01, dated August 17, 2023, by IBR. Delta stated this would allow operators to incorporate the following language: “The use of superseding Interim Revisions or later revisions of the AWL Publication, approved by TC, is acceptable for compliance [. . .]” in Transport Canada AD CF-2023-69. Delta noted that transitioning to IBR of the Transport Canada AD versus the IBR of a specific manufacturer airworthiness limitation (AWL) revision is necessary as AWL Issue 017.02 has already been published and AWL Issue 018.00 is estimated to be released later in 2024. Delta noted it could be at risk of grounding its fleet while waiting for an alternative method of compliance (AMOC) to allow incorporating more up to date AWL revisions.

The FAA agrees to mandate Transport Canada AD CF-2023-69 via IBR in this AD for the reasons provided by the commenter. Incorporating by reference the MCAI instead of the service information does not change the required action to incorporate Airbus Canada Limited Partnership A220 Airworthiness Limitations, BD500-3AB48-11400-02, Issue 017.01, dated August 17, 2023, into their maintenance or inspection program. Instead incorporating by reference of the MCAI relieves the burden of applying for AMOCs to use later approved revisions of the service information. By mandating Transport Canada AD CF-2023-69 via IBR, operators are allowed to use applicable later AWL revisions to comply with the requirements of this AD. Transport Canada AD CF-2023-69 includes paragraph C., which accepts the use of later revisions, approved by Transport Canada, of the referenced AWL document for compliance. The FAA concurs this change will minimize any disruption to an operator's existing maintenance or inspection program due to any potential delays in an AMOC approval.

The FAA has revised paragraph (k) of this AD to incorporate by reference Transport Canada AD CF-2023-69 and added paragraph (l) to this AD to specify exceptions to Transport Canada AD CF-2023-69. The exceptions in paragraph (l) of this AD are standard for ADs that incorporate MCAI by reference.

The FAA has also revised paragraph (m) of this AD (paragraph (l) of the proposed AD) to refer to Transport Canada AD CF-2023-69.

Although Delta indicated that all of Airbus Canada Limited Partnership A220 Airworthiness Limitations, BD500-3AB48-11400-02, Issue 017.01, dated August 17, 2023, should be mandated via the IBR of Transport Canada AD CF-2023-69, the FAA has still excluded Section 03, “Candidate CMR Limitations—General.” Paragraph (g) of this AD is for the CCMRs and paragraph (k) of this AD incorporates all AWLs except for CCMRs, as specified in the paragraph (l)(3) of this AD.

Delta requested that the FAA add a paragraph to allow the use of AMOCs approved for AD 2023-05-08 as AMOCs to the proposed AD paragraphs that require revising the existing maintenance or inspection program. Delta stated it has received many AMOCs for AD 2023-05-08, including one that approves the use of A220 AWL Issue 017.02, or later revisions approved by Transport Canada or Airbus Canada Limited Partnership's Transport Canada Design Approval Organization (DAO), except for the use of candidate certification maintenance requirements (CCMRs). Delta noted that the CCMRs in Table 2 of Airbus Canada Limited Partnership A220 Airworthiness Limitations, BD500-3AB48-11400-02, Issue 011.00, dated June 18, 2020, are still mandatory for airplanes with an original certificate of airworthiness issued on or before June 18, 2020. Delta concluded that the extension of these AMOCs to the proposed AD would allow Delta to continue to use the latest AWL revision and not be responsible for requesting/receiving an AMOC between the AD's publication date and the AD's effective date, preventing the grounding of its fleet.

The FAA agrees that previous AMOCs are acceptable for certain paragraphs in this AD. The FAA has added paragraph (n)(1)(ii) to this AD to allow AMOCs approved previously for AD 2023-05-08 as AMOCs for the corresponding provisions of paragraphs (g) and (i) of this AD. The FAA has also added paragraph (n)(1)(iii) to this AD to allow AMOCs approved previously for AD 2023-05-08 as AMOCs for the corresponding provisions of paragraph (k) of this AD, except for AMOCs that allow the use of revisions earlier than Airbus Canada Limited Partnership A220 Airworthiness Limitations, BD500-3AB48-11400-02, Issue 017.01, dated August 17, 2023.

Delta requested that the FAA remove the requirement mandating the CCMR section of the AWL document. Delta noted that new airplanes are required by the CFR to have the corresponding AWL revision incorporated into their maintenance program. Delta stated the A220 AWL revisions have a CCMR section and thus are required to be incorporated into its maintenance program. Delta pointed out that the FAA has stated CCMR sections should not be mandated by the FAA (as specified in the FAA's response to comments to the NPRM for AD 2023-05-08). Delta concluded their maintenance program is split as follows:

• Newly delivered airplanes: not affected by an AD, CCMRs are required.

• Airplanes delivered after AWL Issue 011.00: CCMR are not required per ADs or CFR.

• Airplanes delivered before AWL Issue 011.00: CCMRs are required per ADs.

The FAA agrees to clarify. In AD 2023-05-08, the FAA explained that equivalent airplane maintenance manual (AMM) tasks may be mandated in lieu of CCMRs in future rulemaking. The FAA also explained that CCMRs that were previously mandated can continue to be mandated. This AD only mandates the previously mandated CCMRs from AD 2021-04-05, Amendment 39-21426 (86 FR 10799, February 23, 2021), as specified in the retained requirements of paragraph (g) of this AD. For this AD, there are no new CCMRs. For future rulemaking where the MCAI includes new CCMRs, the FAA will mandate equivalent AMM tasks in lieu of the CCMRs.

Regarding Delta's comment that their maintenance program is split, the FAA notes that, for Model BD-500-1A10 and BD-500-1A11 airplanes, the CCMRs are mandated either by an AD action or the CFR as follows:

• Newly delivered airplanes with an original airworthiness certificate or original export certificate of airworthiness issued after August 17, 2023: These airplanes are not affected by this AD. However, complying with the airworthiness limitations specified as part of the approved type design and referenced on the type certificate data sheet is required per the CFR (14 CFR 91.403(c)). These airplanes were certified with AWL documents that include CCMRs.

• Airplanes delivered after AWL Issue 011.00 (airplane with an original airworthiness certificate or original export certificate of airworthiness issued after June 18, 2020, but on or before August 17, 2023): These airplanes are affected by this AD. This AD does not require incorporating CCMRs for these airplanes but the CCMRs in the AWL delivered with the airplane are required by the CFR. These airplanes must comply with the airworthiness limitations specified as part of the approved type design and referenced on the type certificate data sheet; these airplanes were certified with AWL Issue 011.00 (or later issues). Those AWL issues include the CCMRs that operators must comply with.

• Airplanes delivered before AWL Issue 011.00 (airplanes with an original airworthiness certificate or original export certificate of airworthiness issued on or before June 18, 2020) are affected by this AD, which requires the CCMRs.

The FAA has not changed this AD regarding this issue.

Delta requested that the FAA add an exception paragraph to the proposed AD to allow FAA operators to omit the 10,000-flight hour life limit for the fuel pump cartridge. In addition, Delta requested that Airbus Canada's latest petition (submitted Dec. 2023) to update Exemption 16779A be approved. Delta noted that the FAA has published Docket No.: FAA-2016-4198; Summary Notice No. 2024-18, which summarizes the petition to request relief from the 10,000-flight hour life limit for the fuel pump cartridge.

Delta stated that in Airbus Canada Limited Partnership A220 Airworthiness Limitations, BD500-3AB48-11400-02, Issue 017.00, Airbus Canada removed, for European Union Aviation Safety Agency (EASA) and Transport Canada operators, the 13,000 flight hour life limit for all fuel boost pump cartridges with manufacturer part number (MPN) 9C208-3 except for “SN AAM4613 to AAM4622; AAF8325; AAF8326; AAJ6639; AAK5612; AAL6169; AAL6170; AAL6173; AAL6174 (PRE SB 9C208-3-28-001)”. Delta stated that Airbus Canada was not able to remove the 10,000-flight hour life limit for FAA operators as FAA Exemption 16779A still requires it.

Delta explained that these fuel boost pump cartridges, MPN 9C208-3, cost approximately $85,000/pump, and there are two pumps per airplane. In addition, Delta explained that it takes approximately 3 years to reach the 10,000-flight hour life limit. At its present fleet size, Delta estimated that it must spend a minimum of $11.7 million every 3 years to replace the fuel boost pump cartridges and once its fleet is fully delivered, it will spend approximately $24.6 million every 3 years. Delta concluded that it is unreasonable to force FAA operators to be burdened with additional costs of compliance over that of other operators who are operating under Airbus Canada Limited Partnership A220 Airworthiness Limitations, BD500-3AB48-11400-02, Issue No. 017.00.

Delta proposed that the FAA include the following exception to paragraph (l) of the proposed AD: “Where TCCA AD CF-2023-69 paragraph A. requires incorporation of the AWL, this AD does not require a 10,000 FH life limit on Part Number 9C208-3 (Cartridge, boost pump) unless it falls within the effectivity definition in Parker SB 9C208-3-28-001.”

Delta requested that if the FAA does not agree to add an exception as stated above, then the Costs of Compliance section of the NPRM be updated to include these exceptional material costs.

The FAA does not agree with the commenter's requests. The FAA cannot grant or deny petitions for exemptions within an AD as that process is outside the scope of this AD action. In addition, the FAA has determined that this AD cannot include relief from the fuel boost pump cartridge life limits in an AD in regards to the petition for relief from FAA Exemption 16779A.

Regarding the costs, the FAA does not agree to revise the Cost of Compliance section of this AD to include the cost of accomplishing repetitive replacements. The FAA recognizes such costs are part of complying with airworthiness limitations, but the costs of accomplishing maintenance actions specified in airworthiness limitations are not directly required by this AD. Instead, this AD requires operators to revise their existing maintenance or inspection program, as applicable, to incorporate the new airworthiness limitations. Compliance with any airworthiness limitation is required by 14 CFR 91.403(c). Therefore, compliance with the airworthiness limitations is not a requirement of this AD, and including the cost of a replacement part would be inappropriate. The FAA has not changed this AD regarding this issue.

Delta requested clarification if an AMOC to deviate from the proposed AD (once published as a final rule) will be needed or if U.S. operators will be able to deviate from the life limit for certain fuel boost pump cartridges once the petition to exemption 16779A is published. Delta stated it believes this exemption will allow Airbus Canada to remove the life limit from the AWL at the next revision. Delta stated it may need to continue to comply with the specific AWL revision until the next AWL revision is published and the FAA has provided approval to use the latest AWL. Delta concluded that due to the significant operational and financial impacts, Delta would like to introduce this relief as soon as possible.

The FAA agrees to clarify. Once the petition to the exemption 16779A is approved and published, operators may request an AMOC to this AD, under the provisions of paragraph (n)(1) of this AD, to allow relief from the fuel boost pump cartridge life limits.

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

Transport Canada AD CF-2023-69 describes airworthiness limitations for fuel tank systems, safe life limits, and certification maintenance requirements.

This AD also requires Airbus Canada Limited Partnership A220 Airworthiness Limitations, BD500-3AB48-11400-02, Issue 014.00, dated February 3, 2022, which the Director of the Federal Register approved for incorporation by reference as of May 12, 2023 (88 FR 20751, April 7, 2023).

This AD also requires Airbus Canada Limited Partnership A220 Airworthiness Limitations, BD500-3AB48-11400-02, Issue 011.00, dated June 18, 2020, which the Director of the Federal Register approved for incorporation by reference as of March 30, 2021 (86 FR 10799, February 23, 2021).

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

The FAA estimates that this AD affects 99 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates the total cost per operator for the retained actions from AD 2023-05-08 to be $7,650 (90 work-hours × $85 per work-hour).

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

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

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

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain De Havilland Aircraft of Canada Limited Model DHC-8-401 and -402 airplanes. The NPRM published in the Federal Register on June 21, 2024 (89 FR 51988). The NPRM was prompted by AD CF-2024-01, dated January 11, 2024, issued by Transport Canada, which is the aviation authority for Canada (Transport Canada AD CF-2024-01) (also referred to as the MCAI). The MCAI states that an in-service event was reported where the crew received a number two isolation valve (ISO #2) caution message followed by a number one isolation valve (ISO #1) caution message. The landing gear was extended via an alternate extension system as the crew prepared for landing. Upon landing, the crew used the emergency brake to stop the airplane. The airplane stopped safely within the runway limits.

Subsequent maintenance activity discovered an external leak from the main landing gear (MLG) brake assembly, and it was found that the fuse/shuttle valve assembly did not function properly. Further investigation revealed that the fuse/shuttle valve assembly failure resulted from a factory assembly error, which occurred on a limited number of fuse/shuttle valves.

The assembly error can cause valve deformation leading to premature wear, and eventually fuse/shuttle valve failure. This condition, if not corrected, could result in the loss of powered landing gear extension/retraction, outboard and inboard spoilers, nose wheel steering, and normal braking, and possibly a runway excursion.

In the NPRM, the FAA proposed to require inspecting the fuse/shuttle valve serial numbers, and replacing certain fuse/shuttle valves, as specified in Transport Canada AD CF-2024-01. The FAA is issuing this AD to address the unsafe condition on these products.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2024-1692.

The FAA received a comment from Air Line Pilots Association, International (ALPA). The following presents the comment received on the NPRM and the FAA's response to the comment.

ALPA stated the compliance time of 8,000 flight hours or 48 months whichever occurs first after the effective date of the proposed AD is excessive for such unsafe condition, that could result in the loss of powered landing gear extension/retraction, outboard and inboard spoilers, nose wheel steering, normal braking, and possibly a runway excursion. The FAA infers that ALPA is requesting the FAA reduce the compliance time.

The FAA does not agree with the request. The FAA has determined that Transport Canada's compliance time calculation is adequate. The low probability of a critical event is due to the single occurrence and high flight hours. In addition, multiple isolation valves can effectively mitigate hydraulic fluid leaks. After considering all the available information, the FAA has determined that the compliance time, as proposed, represents an appropriate interval of time in which the required actions can be performed in a timely manner within the affected fleet, while still maintaining an adequate level of safety. Additionally, the FAA notes that there has been only one event of an in-service aircraft, and in that event, the aircraft landed safely. With only one event and the high amount of flight hours in the fleet, the probability of the unsafe condition occurring is low. It is possible that all the systems listed in this AD could fail simultaneously; however, that is unlikely. Aircraft hydraulic systems typically have an isolation valve, which in this case was activated and annunciated. The isolation valve was effective, and although hydraulic fluid leaked, the hydraulic pressure remained at normal levels. This AD has not been changed regarding this request.

Paragraph (e) of the proposed AD states the FAA is issuing this AD to address certain fuse/shuttle valves. The FAA has revised paragraph (e) of this AD to state the FAA is issuing this AD to address failure of certain fuse/shuttle valves to clarify it is the failure of the fuse/shuttle valves that could lead to the unsafe condition.

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

Transport Canada AD CF-2024-01 specifies procedures for inspecting the fuse/shuttle valve serial numbers, and if any fuse/shuttle valve assemblies with the listed serial numbers are found, replacing the affected fuse/shuttle valves.

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

The FAA estimates this AD affects 54 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

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

BIS implements export controls on dual-use and certain munitions items (commodities, software, and technology) under the EAR (15 CFR parts 730-774) to advance U.S. national security and foreign policy interests. Among other controls, the EAR restricts the export, reexport, and transfer (in-country) of items based on their classification on the CCL (supp. no. 1 to 15 CFR part 774) and relevant reason(s) for control (see 15 CFR part 742) applicable to the country of destination, as generally determined by the Commerce Country Chart (supp. no. 1 to 15 CFR part 738). BIS also maintains end-use and end-user controls pursuant to part 744 of the EAR, including controls on transactions involving less-sensitive items designated as EAR99, and controls that apply to specific activities of U.S. persons. Additionally, BIS maintains embargoes and special controls pursuant to part 746 of the EAR. With respect to Pakistan, BIS maintains a combination of CCL-based, end-use, and end-user controls. The end-use controls include a license requirement for the export, reexport, or transfer (in-country) of items subject to the EAR to or within Pakistan when there is knowledge that the items will be used in certain nuclear end uses (see 15 CFR 744.2) or in certain rocket system or unmanned aerial vehicle ( e.g., missile) end uses (see 15 CFR 744.3). The end-user controls include Entity List and Unverified List restrictions on exports, reexports, and transfers (in-country) of certain items subject to the EAR that apply when specific entities in Pakistan are parties to the transaction pursuant to part 744 of the EAR (see supps. no. 4 and 6 to 15 CFR part 744).

In 1998, Pakistan detonated a nuclear explosive device. In response, BIS imposed further licensing requirements on certain entities in Pakistan determined to have been involved in nuclear or missile activities by adding those entities to the Entity List (63 FR 64322, November 19, 1998). Since that time, BIS has added additional entities in Pakistan to the Entity List. There are currently over 100 entities on the Entity List under the destination of Pakistan. Pursuant to § 744.11(b) of the EAR, BIS has added such entities consistent with the interagency End-User Review Committee's determination that there was reasonable cause to believe, based on specific and articulable facts, that such entities are involved, have been involved, or pose a significant risk of being or becoming involved in, activities contrary to U.S. national security or foreign policy interests. For example, in 2021, BIS added 11 entities to the Entity List, under the destination of Pakistan for, inter alia, contributions to Pakistan's unsafeguarded nuclear activities and ballistic missile program (86 FR 67317, November 26, 2021). In 2022, BIS added three entities to the Entity List, under the destination of Pakistan, because the entities pose an unacceptable risk of using or diverting items subject to the EAR to certain nuclear end-uses and certain rocket systems and unmanned aerial vehicles end-uses (87 FR 38920, June 28, 2022).

This rule addresses BIS's concern that certain CCL items controlled only for antiterrorism (AT) reasons (and hence not currently subject to a CCL-based license requirement for export or reexport, or transfer (in-country) to or within Pakistan) have been sought by entities listed on the Entity List, as well as front companies acting on behalf of such entities. Specifically, entities on the Entity List have sought items classified under the following Export Control Classification Numbers (ECCNs): (1) 1B999 (“Specific Processing Equipment, n.e.s.”); (2) 2A992 (“Piping, fittings and valves made of, or lined with stainless, copper-nickel alloy or other alloy steel containing 10% or more nickel and/or chromium”); (3) 2B999 (“Specific Processing Equipment, n.e.s.”); (4) 3A992 (“General purpose electronic equipment not controlled by 3A002”); (5) 3A999 (“Specific Processing Equipment, n.e.s.”); and (6) 6A996 (“`Magnetometers' not controlled by ECCN 6A006, `Superconductive' electromagnetic sensors, and `specially designed' `components' therefor”).

BIS previously controlled certain of these nuclear- or missile-related items to Pakistan unilaterally for nuclear nonproliferation (NP2) reasons (see 81 FR 85138, November 25, 2016), and for Anti-Terrorism (AT) reasons to sanctioned and embargoed destinations (see 65 FR 38148, June 19, 2000 and 72 FR 3722, January 26, 2007). Accordingly, BIS has determined that prior U.S. government review of proposed exports, reexports, and transfers (in-country) of items controlled under the six ECCNs specified above to or within Pakistan, and the potential denial or approval with limiting conditions of such exports, reexports, and transfers (in-country), would advance U.S. national security and foreign policy interests by reducing the risk of diversion to unauthorized end uses and/or end users. BIS reminds exporters, reexporters, and transferors of items subject to the EAR to Pakistan that as a best practice, they should review BIS's Pakistan Due Diligence Guidance located on the BIS website at: https://www.bis.doc.gov/index.php/policy-guidance/pakistan-due-diligence-guidance.

In this final rule, BIS is imposing additional CCL controls on exports and reexports to, as well as transfers (in-country) within, Pakistan pursuant to part 742 of the EAR. Specifically, BIS is adding a new paragraph to § 742.6 of the EAR to impose a license requirement on the export, reexport, or transfer (in-country) of certain items to or within Pakistan, for regional stability (RS) reasons. Pursuant to new paragraph (a)(12) of § 742.6, there will be a license requirement for exports, reexports, and transfers (in-country) to or within Pakistan of all items classified under ECCNs 1B999, 2A992, 2B999 (other than 2B999.h.2), 3A992, 3A999, and 6A996. Pursuant to new § 740.2(a)(25), the only license exceptions that will be available for the export, reexport, or transfer (in-country) to or within Pakistan of items subject to the new license requirement in § 742.6(a)(12) are TMP (limited to 740.9(a)(1), (a)(4), (a)(5), (a)(10), (b)(2), and (b)(3)), RPL (740.10), and GOV (limited to 740.11(a), (b), and (d)). However, BIS notes that consistent with § 744.16(b), license exceptions are generally unavailable when a party on the Entity List is a party to the transaction. For example, the Chashma and Karachi Nuclear Power Plants are subject to International Atomic Energy Agency (IAEA) safeguards but are listed on the Entity List under the entry for the Pakistan Atomic Energy Commission, under the subordinate entity “Nuclear reactors (including power plants).” The Organization for the Prohibition of Chemical Weapons (OPCW)-designated laboratory in Pakistan, the Analytical Laboratory of the Defense Science and Technology Organization (DESTO) is also listed on the Entity List. Accordingly, GOV (§ 740.11(a)) (IAEA shipments for international safeguards use) and GOV (§ 740.11(d)) (OPCW-related shipments), would not be available for exports or reexports of the foregoing items to these entities in support of IAEA/OPCW activities.

New paragraph (b)(13) of § 742.6 provides that license applications for exports, reexports, and transfers (in-country) to or within Pakistan of items controlled under ECCNs 1B999, 2A992, 2B999 (other than 2B999.h.2), 3A992, 3A999, and 6A996 will be reviewed on a case-by-case basis to determine whether the proposed export, reexport, or transfer (in-country) presents an unacceptable risk of use in, or diversion to, an end use or end user of concern, as set forth in part 744 of the EAR. If it is determined that the proposed export, reexport, or transfer (in-country) presents an unacceptable risk of use in, or diversion to, an end use or end user of concern, the application will be denied.

Accordingly, as of the effective date of this rule, exporters, reexporters, and transferors must seek a license from BIS to export, reexport, or transfer (in-country) items controlled under ECCNs 1B999, 2A992, 2B999 (other than 2B999.h.2), 3A992, 3A999, and 6A996 to Pakistan, regardless of end use or end user, unless a license exception specified in § 740.2(a)(25) is available.

This rule also adds and reserves two new paragraphs § 742.6(a)(11) and (b)(12) in anticipation of future BIS rulemaking.

For the changes being made in this final rule, shipments of items removed from eligibility for a License Exception or export, reexport, or transfer (in-country) without a license (NLR), or for which EEI filing is required as a result of this regulatory action that were en route aboard a carrier to a port of export or reexport on December 26, 2024, pursuant to actual orders for export or reexport to a foreign destination, may proceed to that destination under the previous eligibility for a License Exception or export, reexport, or transfer (in-country) without a license (NLR), and/or without an EEI filing, unless such filing is otherwise required by law or regulation independent of this action.

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

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

2. Notwithstanding any other provision of law, no person is required to respond to or be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq. ), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This rule involves the following OMB-approved collections of information subject to the PRA:

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

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

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

BIS estimates that these new controls on Pakistan under the EAR will result in an increase of 55 license applications submitted annually to BIS. However, the additional burden falls within the existing estimates currently associated with these control numbers. Additional information regarding these collections of information—including all background materials—can be found at: https://www.reginfo.gov/public/do/PRAMain by using the search function to enter either the title of the collection or the OMB Control Number.

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

4. As noted in the preamble, pursuant to Section 1762(a) of ECRA (50 U.S.C. 4821(a)), BIS may issue final rules that are exempt from certain rulemaking requirements. Specifically, this action is exempt from the Administrative Procedure Act (APA) (5 U.S.C. 553) requirements for notice of proposed rulemaking, opportunity for public participation, and delay in effective date. While Section 1762 of ECRA provides sufficient authority for such an exemption, this action is also independently exempt from these APA requirements because it involves a military or foreign affairs function of the United States (5 U.S.C. 553(a)(1)).

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

Accordingly, parts 738, 740, 742 and 774 of the Export Administration Regulations (15 CFR parts 730-774) are amended as follows:

On December 4, 2023, the Department published a final rule in the Federal Register at 88 FR 84072 temporarily modifying the note to USML Category VIII(h)(1), such that parts, components, accessories, and attachments specially designed for aircraft identified in paragraph (h)(1) are not released from that paragraph due to their use in the KF-21 aircraft.

The Department previously determined it is in the national security and foreign policy interests of the United States to allow manufacturers to apply for export authorizations to participate in development of the KF-21 aircraft by using certain defense articles described in paragraph (h)(1) without removing those defense articles from the USML simply because they are used in the KF-21.

Now, the Department again determines it is in the security and foreign policy interests of the United States to extend the validity period of this temporary modification. Accordingly, pursuant to International Traffic in Arms Regulations (ITAR) § 126.2, the Acting Assistant Secretary of State for Political-Military Affairs hereby extends the previous temporary modification of the Note to paragraph (h)(1) of USML Category VIII.

Section 126.2 of the ITAR provides that the Deputy Assistant Secretary for Defense Trade Controls may order the temporary suspension or modification of any or all provisions of the ITAR when in the interest of the security and foreign policy of the United States. Section 120.1(b) of the ITAR authorizes the Assistant Secretary of State for Political-Military Affairs to exercise this authority for the Department.

This temporary modification, already effective and currently reflected in the USML at ITAR § 121.1, is hereby extended until December 1, 2026, or when terminated by the Department, whichever occurs first.

This rulemaking is exempt from section 553 of the Administrative Procedure Act (APA) pursuant to section 553(a)(1) as a military or foreign affairs function of the United States.

Since this rule is exempt from the notice-and-comment rulemaking provisions of 5 U.S.C. 553, it does not require analysis under the Regulatory Flexibility Act.

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

The Department assesses that this rule is not a major rule under the criteria of 5 U.S.C. 804.

This rulemaking does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this rulemaking.

Executive Orders 12866 (as amended by Executive Order 14094) and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributed impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been deemed a “significant regulatory action” under Executive Order 12866. Accordingly, the rule has not been reviewed by the Office of Management and Budget (OMB).

The Department of State has reviewed this rulemaking in light of sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

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

This rulemaking does not impose or revise any information collections subject to 44 U.S.C. chapter 35.

The final regulations (TD 10010) subject to these corrections are issued under section 45X of the Internal Revenue Code.

Accordingly, FR Doc. 2024-24840 (TD 10010), appearing on page 85798 in the Federal Register of Monday, October 28, 2024, is corrected as follows:

1. On page 85798, in the second column, in the second partial paragraph, in the third line from the bottom of the paragraph, the language “1818 (August 16, 2022)” is corrected to read “1818, 1971 (August 16, 2022)”.

2. On page 85800, in the first column, in the first full paragraph, in the eighth line, “193” is corrected to read “194”.

3. On page 85800, in the first column, the heading “A. In general” is corrected to read “A. In General”.

4. On page 85801, in the second column, in the sixth line from the bottom of the first partial paragraph, the language “considered to produce” is corrected to read “considered to have produced”.

5. On page 85801, in the third column, in the fifth line of the first full paragraph, the language “produced by the taxpayer” is corrected to read ““produced by the taxpayer””.

6. On page 85803, in the second column, in the twenty-fourth line of the first full paragraph, the language “clarified” is corrected to read “clarified the”.

7. On page 85803, in the second column, in the fifth line from the bottom of the first full paragraph, the language “have” is corrected to read “have the”.

8. On page 85803, in the second column, in the sixth line of the first partial paragraph, the language “United States,” is corrected to read “United States, including continental shelf areas”.

9. On page 85806, in the third column, in the sixth line of the first partial paragraph, the word “batteries” is corrected to read “eligible components”.

10. On page 85806, in the third column, in the eighth line of the first full paragraph, the word “both” is corrected to read “the”.

11. On page 85807, in the third column, in the last line from the bottom of the first partial paragraph, the language “sale.” is corrected to read “sale. Accordingly, the Treasury Department and the IRS decline to adopt the commenter's suggestion and finalize the proposed rule without modification.”.

12. On page 85807, in the third column, in the eighth line of the second full paragraph, the language “as commenter” is corrected to read “as the commenter”.

13. On page 85809, in the third column, in the fifth line from the bottom of the third full paragraph, the word “if” is corrected to read “provided that”.

14. On page 85809, in the third column, in the fourth line from the bottom of the third full paragraph, the word “polysilicon” is corrected to read “polysilicon,”.

15. On page 85813, in the first column, in the seventh line from the bottom of the third full paragraph, the language “(Standard)” is removed.

16. On page 85813, in the first column, in the fifth line from the bottom of the third full paragraph, the language “Standards” is corrected to read “standards”.

17. On page 85815, in the third column, in the second line of the third full paragraph, the language “that generally,” is corrected to read “that, generally,”.

18. On page 85816, in the second column, the first partial paragraph, the language “as electrode active materials, battery cells, or battery modules” is corrected to read “as an electrode active material, a battery cell, or a battery module”.

19. On page 85820, in the second column, in the twentieth line of the first full paragraph, the word “at” is corrected to read “an”.

This document amends the Procedure and Administration Regulations, 26 CFR part 301, relating to section 6103(j)(1)(A) of the Internal Revenue Code (Code), by adding final regulations under section 6103 (final regulations). Section 6103(j)(1) provides an express delegation of authority to the Secretary of the Treasury or her delegate (Secretary), stating that, “[u]pon request in writing by the Secretary of Commerce, the Secretary shall furnish . . . such returns, or return information reflected thereon, to officers and employees of the Bureau of the Census” and “such return information reflected on returns of corporations to officers and employees of the Bureau of Economic Analysis” “as the Secretary may prescribe by regulation for the purpose of, but only to the extent necessary in, the structuring of censuses and national economic accounts and conducting related statistical activities authorized by law.” Section 6103(q) further authorizes the Secretary to “prescribe such other regulations as are necessary to carry out the provisions of” section 6103. The final regulations are also issued under the express delegation of authority under section 7805(a) of the Code.

There is a long history of providing return information to the Bureau under section 6103(j)(1)(A), and the regulations promulgated under this section have been amended periodically to increase the amount of return information provided to facilitate the statistical activities of the Bureau. See e.g., TD 9037, 68 FR 2693, January 21, 2003; TD 9188, 70 FR 12141, March 11, 2005; TD 9267, 71 FR 38263, July 6, 2006; TD 9372, 72 FR 73262, December 27, 2007; TD 9439, 73 FR 79361, December 29, 2008; TD 9500, 75 FR 52459, August 26, 2010; TD 9631, 78 FR 52857, August 27, 2013; TD 9754, 81 FR 9767, February 26, 2016; TD 9856, 84 FR 14011, April 9, 2019.

The existing regulations under section 6103(j)(1)(A) are set forth in 26 CFR 301.6103(j)(1)-1. They authorize the Bureau to receive return information that supports many different Bureau projects and programs, including the Economic Census, the Longitudinal Employer-Household Dynamics program, and the Small Area Income and Poverty Estimates program, among others.

Pursuant to section 6103(p)(4), the IRS sets stringent privacy and security requirements for agencies receiving return information, including the Bureau. These requirements are currently detailed in IRS Publication 1075, Tax Information Security Guidelines For Federal, State and Local Agencies. See also § 301.6103(p)(4)-1.

By letter dated February 29, 2024, the Secretary of Commerce requested the Secretary amend existing § 301.6103(j)(1)-1 to provide for the disclosure of additional items of return information to the Bureau to enable the Bureau to perform mission critical statistical functions. The Secretary of Commerce further stated that the additional items would allow the Bureau to conduct its economic, demographic, decennial, and research statistics programs, censuses, and related program evaluations. The amendments to the existing regulations would permit the Bureau to publish statistical information, enhance the use of administrative records, improve the quality of program estimates, and support the reduction of burden. The Secretary of Commerce's letter lists the additional items of return information requested based on the Bureau's specific need for each item of information.

On March 29, 2024, a notice of proposed rulemaking (REG-123376-22) was published in the Federal Register (89 FR 22101) (proposed regulations). The proposed regulations proposed amending the regulations that authorize disclosure of specified return information to the Bureau. The proposed regulations would allow the disclosure of additional items of return information requested by the Secretary of Commerce to enable the Bureau to perform mission critical statistical functions. The proposed regulations would also permit the disclosure of return information if an item of return information currently listed in the regulations is subsequently reported in a substantially similar format or on a substantially similar document.

The proposed regulations would formalize existing practice to include (1) the requirement that all projects that use return information disclosed under these regulations be approved by the IRS Director of Statistics of Income, and (2) language related to the IRS's and the Bureau's disclosure review obligations.

The Department of the Treasury (Treasury Department) and the IRS received eighteen comments in response to the proposed regulations. The comments are available for public inspection at https://www.regulations.gov or upon request. There was no request for a public hearing, and none was held. After full consideration of the comments received, which are described in this Summary of Comments and Explanation of Revisions, these final regulations adopt the proposed regulations with minor changes.

Nine of the comments received did not seek to modify the items of return information permitted to be disclosed to the Bureau pursuant to the proposed regulations. Of these comments, six were supportive of the proposed regulations. One comment noted the importance of administrative tax data in measuring and understanding income and wealth in the United States. Another comment noted that the proposed regulations would improve the Bureau's ability to accurately estimate household income and otherwise evaluate and improve the Bureau's statistical products. This same comment also encouraged the IRS and the Bureau, along with the Office of Management and Budget and other statistical agencies, to explore additional pathways for increasing the statistical agencies' access to Federal tax data, as well as a greater sharing of administrative data across statistical agencies, noting that increased use of administrative data has significant promise for improving statistics on U.S. households and businesses. Finally, this comment noted its support for further consideration of possible means of expanding access to tax data for appropriate purposes in a reliably secure and confidential way.

Another comment supported the proposed regulations and stated that the data that could be disclosed as outlined in the proposed regulations was crucial for the IRS's efforts to advance equity. As one example, this comment noted that, if finalized, the proposed regulations would provide an important opportunity for government and independent researchers to understand demographic trends regarding the Child Tax Credit (CTC) and other refundable credits, as well as to identify and track potential disparities in tax administration. Another comment noted that the proposed changes to the existing regulations would enable the Bureau to produce data that provides more detail about the economic conditions of various populations across the United States, including populations that have been historically underserved, marginalized, and adversely affected by health inequity.

These comments reflect support for the proposed regulations' items of return information permitted to be disclosed to the Bureau. The Treasury Department and IRS agree that disclosure of this information will further the needs of the Bureau by authorizing the Bureau to receive return information that supports many different Bureau projects and programs, including the Economic Census, the Longitudinal Employer-Household Dynamics program, and the Small Area Income and Poverty Estimates program, among others.

Two comments suggested that additional information on the variety of energy credits under the Inflation Reduction Act of 2022 (IRA) be furnished to the Bureau. The IRA, Public Law 117-169, 136 Stat. 1818 (August 16, 2022), featured a significant number of new tax provisions related to clean energy. Section 6103(j)(1)(A) provides that the Secretary “shall furnish” returns or return information requested by the Secretary of Commerce “for the purpose of, but only to the extent necessary in, the structuring of the censuses and national economic accounts and conducting related statistical activities authorized by law.” In her request to the Secretary, the Secretary of Commerce did not request the furnishing of the return information recommended by the comments. Because the Secretary of Commerce did not request that information, the final regulations do not adopt these comments.

Similarly, two other comments recommended that additional data regarding partnership returns be furnished to the Bureau—specifically, the zip code of partners included on Form 1065, U.S. Return of Partnership Income, Schedule K-1. The Secretary of Commerce in her request to the Secretary did not request the return information recommended by the comments. Accordingly, the final regulations do not adopt these comments.

One comment suggested that it is important for the Bureau to have access to the series of Forms 1099 for both filers and non-filers because such information is important for measuring and understanding income and its distribution, and that the accuracy of income estimates would improve. The comment in particular identified Forms 1099-INT, Interest Income, and 1099-DIV, Dividends and Distributions, along with certain data from Form 1098-T, Tuition Statement (identifiers of the college attended, and tuition amount). The Secretary of Commerce in her request to the Secretary did not request the disclosure of the Form 1099 series in general or the Forms 1099-INT or 1099-DIV specifically. The proposed regulations would permit the disclosure of payments received for qualified tuition and related expenses as well as the identity of the eligible educational institution filing Form 1098-T. Accordingly, no change to the final regulations is necessary to adopt these comments.

Two other comments requested that payer and payee taxpayer identification numbers (TINs) from information returns be disclosed to the Bureau. Payer and payee TINs may already be disclosed to the Bureau under the existing regulations. See §§ 301.6103(j)(1)-1(b)(1) (relating to individual taxpayers); 301.6103(j)(1)-1(b)(2)(i) (relating to taxpayers engaged in a trade or business); 301.6103(j)(1)-1(b)(3) (relating to business-related return information); and 301.6103(j)(1)-1(b)(4) (relating to tax-exempt organizations). The proposed regulations similarly provide for the ability to disclose payer and payee TINs. See proposed §§ 301.6103(j)(1)-1(b)(1)(i)(A) (relating to individual taxpayers); 301.6103(j)(1)-1(b)(1)(ii) (relating to returns filed on behalf of a trade or business); 301.6103(j)(1)-1(b)(1)(iii) (relating to tax-exempt organizations). Accordingly, no change to the final regulations is necessary to adopt these comments.

A comment supported the language in the proposed regulations that would provide the Bureau with information on health coverage (such as marketplace coverage parameters, and employer coverage on Forms 1095-A, Health Insurance Marketplace Statement, 1095-B, Health Coverage, and 1095-C, Employer-Provided Health Insurance Offer and Coverage ) noting that the information reported on these forms provides a comprehensive record of health coverage nationwide and fills important gaps in data. The comment also noted that information regarding health savings accounts (HSAs) from Form 5498-SA, HSA, Archer MSA, or Medicare Advantage MSA Information, would also be valuable to policymakers, as the policy considerations with respect to HSAs are a frequent and important focus of ongoing research. The Treasury Department and the IRS note that certain data from Form 5498-SA are already included in the information that would be permitted to be disclosed to the Bureau under the proposed regulations. The final regulations in this regard adopt the proposed regulations without modification.

This same comment requested that the Bureau release (a) enhanced Annual Social and Economic Supplement (ASEC) of the Current Population Survey (CPS) data with new IRS data matched to it, and (b) detailed cross tabulations of newly released tax data by income, geographic area, filing type, and other available tax return statistics. In addition, this comment also encouraged the IRS to continue to carefully evaluate technical and policy solutions for safely sharing the various blended data and implement data governance principles such as accessibility and transparency, through the blending of IRS and Bureau data.

This same comment suggested that various data elements should be disclosed to the Bureau to allow the Bureau to have a more accurate understanding of the impact of current tax benefits and the potential impact of modifications to these provisions. The suggested data elements included: tax-filing status, income from various sources, the number of earned income tax credit (EITC) eligible qualifying children, the amount of tax credits like EITC and the CTC that families receive, and tax liabilities. Each of these data elements may be disclosed either directly or indirectly under the existing regulations and also under the proposed regulations. See proposed §§ 301.6103(j)(1)-1(b)(1)(i) (reflecting returns and return information related to individual taxpayers); 301.6103(j)(1)-1(b)(1)(i)(B) (regarding tax-filing status); 301.6103(j)(1)-1(b)(1)(i)(O) (regarding earned income as defined under section 32(c)(2)); 301.6103(j)(1)-1(b)(1)(i)(GG) (regarding the EITC); 301.6103(j)(1)-1(b)(1)(i)(P) (regarding EITC-eligible qualifying children); 301.6103(j)(1)-1(b)(1)(i)(PP) (regarding the CTC). The overall tax liability of an individual taxpayer, which the Treasury Department and IRS interpret to mean the total amount of tax due or paid by an individual taxpayer, may be ascertained through the items of income, gain, deduction, and credit, that may similarly be disclosed under the proposed and final regulations. Accordingly, the final regulations adopt the proposed regulations in this respect without modification.

One comment suggested that in its finalized form, the proposed regulations should state affirmatively that, in addition to IRS data privacy protections, data are and will remain confidential under 13 U.S.C. 9, whether in their original form or when comingled or linked.

The final regulations do not adopt this recommendation. The provision cited in the comment, 13 U.S.C. 9, governs the protection and use of confidential data by the Department of Commerce. Section 214 of title 13, United States Code governs criminal penalties against employees or staff members of the Bureau for prohibited disclosure of such confidential data. The disclosures that would be permitted by the proposed regulations concern disclosures made by the IRS under section 6103(j) of Title 26, United States Code (Title 26). The proposed regulations, as well as these final regulations, do not govern data privacy or confidentiality requirements outside of Title 26. The Secretary of Commerce affirmed the application of 13 U.S.C. 9 and 214 in her February 29, 2024, request to the Secretary.

Two other comments expressed concerns that the data sharing contemplated by the proposed regulations would weaken the confidentiality of personal tax data held by the IRS, encourage the inappropriate release of personal tax information, and increase the vulnerability of individual tax return information to data breaches, intrusion, data theft, and abuse.

The Treasury Department and the IRS take taxpayer confidentiality seriously. Section 6103(a) prohibits the unauthorized disclosure of tax returns and return information by officers or employees of the United States, which includes officers or employees of the Treasury Department, the IRS, the Department of Commerce, and the Bureau. Unauthorized disclosure of returns and return information, if willful, is a felony. See section 7213 of the Code. Unauthorized disclosure may also be punishable through civil damages. See section 7431 of the Code. Pursuant to section 6103(p)(4), the IRS sets stringent privacy and security requirements for agencies receiving return information, including the Bureau. See § 301.6103(p)(4)-1. Proposed § 301.6103(j)(1)-1(d) did not propose to modify the requirements set forth in section 6103(p)(4) and, instead, noted their applicability, stating that if the IRS determines that the Bureau fails to satisfy those requirements, the IRS may take action to ensure that the requirements are satisfied, “including suspension of disclosures of return information” until the IRS determines that the requirements of section 6103(p)(4) have been, or will be, satisfied.

No comments were received regarding proposed § 301.6103(j)(1)-1(d), and accordingly, the final regulations adopt the proposed regulation in this respect without modification. The regulation ensures that disclosures of returns and return information are made consistent with the requirements set forth in the Code and regulations, and that the IRS may suspend any disclosures to the Bureau should either entity fail to satisfy the requirements under section 6103(p)(4).

One comment requesting that the proposed regulations be withdrawn expressed concerns that sharing additional tax data with the Bureau would result in unintended adverse consequences for immigrant communities. Specifically, the comment noted that additional data sharing could result in a “chilling effect” for immigrant taxpayers, suggesting that individuals may not file tax returns because they are concerned that their tax return data will be shared with immigration enforcement agencies. The comment also expressed a concern that the proposed regulations could result in the creation of a list of taxpayers who file returns using Individual Taxpayer Identification Numbers that could be used to target individuals presumed to be undocumented for immigration enforcement purposes. The comment noted that the IRS should continue to assure taxpayers that their data is secure and that they can safely file their taxes without being concerned that their information will be used for reasons beyond tax administration.

As discussed previously in this Summary of Comments and Explanation of Revisions, return information that a taxpayer provides to the IRS may not be disclosed unless otherwise permitted by Title 26, and unauthorized disclosures of returns or return information may be subject to criminal and civil penalties. There is no provision in the United States Code that authorizes the disclosure or redisclosure of returns or return information for enforcement of immigration laws. Comments regarding other possible lawful disclosures of taxpayer information are outside the scope of these regulations because the proposed regulations relate to the disclosure of specified return information to the Bureau, as permitted by law, and not to any other agency, such as U.S. Immigration and Customs Enforcement or the U.S. Department of Homeland Security.

Another comment requested that the proposed regulations be withdrawn because sharing such personal and entity tax data encourages a racial and/or gender diversity impact analysis of tax policy decisions. The comment further stated that such a racial or gender diversity impact analysis is inappropriate where no discriminatory intent has been demonstrated and where tax provisions have been introduced by Congress based on independent considerations of tax policy without any design or purpose to create disproportionate racial or gender impact. The Treasury Department and the IRS do not adopt this comment. As previously described in this preamble, section 6103(j) states that the Secretary “shall furnish” returns and return information, upon the request of the Secretary of Commerce, to the Bureau “for the purpose of, but only to the extent necessary in, the structuring of censuses and national economic accounts and conducting related statistical activities authorized by law.” These regulations provide for disclosure to the Bureau that is fully consistent with that statutory mandate.

No comments were received regarding the definition of taxpayer identity information. Proposed § 301.6103(j)(1)-1(b)(1)(i)(A) is the first instance of where that term is used and includes the parenthetical “(as defined under section 6103(b)(6) of the Code).” Other references to taxpayer identity information in the proposed regulations lack that parenthetical descriptor. To provide consistency, the final regulations modify the proposed regulations to include that descriptor. See §§ 301.6103(j)(1)-1(b)(1)(ii)(A) (regarding taxpayer identity information of taxpayers engaged in a trade or business); 301.6103(j)(1)-1(b)(1)(ii)(P) (regarding taxpayer identity information of a parent corporation, shareholder, partner, and employer identity information); 301.6103(j)(1)-1(b)(1)(iii)(A) (regarding taxpayer identity information of a tax-exempt organization); 301.6103(j)(1)-1(b)(3)(i)(A)( 1 ) (regarding taxpayer identity information reflected on returns of corporations); 301.6103(j)(1)-1(b)(3)(i)(B)( 2 ) (regarding taxpayer identity information from Form SS-4, Application for Employer Identification Number ).

Pursuant to the Memorandum of Agreement, Review of Treasury Regulations under Executive Order 12866 (June 9, 2023), tax regulatory actions issued by the IRS are not subject to the requirements of section 6 of Executive Order 12866, as amended. Therefore, a regulatory impact assessment is not required.

Because these regulations would not impose any requirements on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Internal Revenue Code, the notice of proposed rulemaking was submitted to the Chief Counsel for the Office of Advocacy of the Small Business Administration for comment on its impact on small business. The Chief Counsel for the Office of Advocacy of the Small Business Administration did not provide any written comments.

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires that agencies assess anticipated costs and benefits and take certain other actions before issuing a final rule that includes any Federal mandate that may result in expenditures in any one year by a State, local, or Tribal government, in the aggregate, or by the private sector, of $100 million in 1995 dollars, updated annually for inflation. In 2024, that threshold was $200 million. This rule does not include any Federal mandate that may result in expenditures by State, local, or Tribal governments, or by the private sector in excess of that threshold.

Executive Order 13132 (Federalism) prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial direct compliance costs on State and local governments, and is not required by statute, or preempts State law, unless the agency meets the consultation and funding requirements of section 6 of the Executive order. These regulations do not have federalism implications and do not impose substantial direct compliance costs on State and local governments or preempt State law within the meaning of the Executive order.

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), the Office of Information and Regulatory Affairs designated this rule as not a major rule, as defined by 5 U.S.C. 804(2).

The principal author of these regulations is Elizabeth Erickson of the Office of the Associate Chief Counsel (Procedure and Administration). However, other personnel from the Treasury Department and the IRS also participated in their development.

Accordingly, 26 CFR part 301 is amended as follows:

The regulations at parts 800 and 802 to title 31 of the Code of Federal Regulations (parts 800 and 802, respectively) implement the provisions of section 721 of the Defense Production Act of 1950 (DPA), as amended, which is codified at 50 U.S.C. 4565 (section 721) and which establishes the authorities of the Committee on Foreign Investment in the United States (CFIUS or the Committee). Section 721 authorizes the President or his designee ( i.e., CFIUS) to review mergers, acquisitions, and takeovers by or with any foreign person that could result in foreign control of any U.S. business, certain noncontrolling investments by foreign persons in a subset of U.S. businesses, as well as certain real estate transactions involving foreign persons. When in the course of its review CFIUS identifies a national security risk that arises as a result of a transaction within its jurisdiction (referred to in the regulations as a “covered transaction” or “covered real estate transaction” as appropriate), it is authorized to negotiate and enter into agreements with the transaction parties or impose conditions on the transaction parties, including through the issuance of orders, to mitigate the risk. CFIUS is further authorized to enforce those agreements, conditions, and orders, including through assessing a penalty.

On April 15, 2024, the U.S. Department of the Treasury (Treasury Department) published in the Federal Register a notice of proposed rulemaking (proposed rule) (89 FR 26107) that proposed amendments to certain provisions of parts 800 and 802. Specifically, the proposed rule included amendments that would: (1) expand the categories of information that CFIUS may request from transaction parties and other persons; (2) introduce a time frame within which parties would ordinarily be required to respond to a Committee proposal to mitigate identified national security risk (including any revision of such a proposal); (3) expand the instances in which CFIUS may use its subpoena authority; (4) expand the circumstances in which a civil monetary penalty may be imposed; (5) increase the maximum civil monetary penalty available for certain violations of CFIUS's statute or regulations, including as related to mitigation agreements, conditions, or orders; and (6) extend the time frames for a party's submission of a petition for reconsideration of a penalty and the Committee's response to such a petition.

Further explanation of the proposed changes can be found at 89 FR 26107. The public was given an opportunity to comment on the proposed rule, and comments were due by May 15, 2024. The Treasury Department received 728 comment submissions, of which 718 were duplicates or near duplicates. Comments are discussed in the following section along with the changes made in this final rule.

During the public comment period, the Treasury Department received 728 comment submissions reflecting a range of views. The Treasury Department considered each comment submitted on the proposed rule and made one revision to this final rule in response to the comments. The section-by-section analysis below discusses the comments received, explains the Treasury Department's responses to the comments, and describes changes made in this final rule in light of the comments.

One commenter expressed the view that the provisions pertaining to requesting information from “other persons” are without any limitation and recommended that the provisions be modified to make clear that such other persons must have a connection to a particular transaction. Additionally, the commenter recommended that the Committee's evaluation of the adequacy of a non-party's response to a CFIUS request for information should be based on whether the response sufficiently addressed the specific questions posed, rather than whether the Committee derived any benefit from the response. Finally, the commenter proposed that if such other persons or transaction parties omit information from a response to a CFIUS inquiry about a transaction, a determination of whether that omission constitutes a violation of the statute or regulations should be subject to a “knowledge qualifier”— i.e., the Committee should determine a person's omission constitutes a violation if the person “knew or should have known,” for example, that the information omitted was responsive to the Committee's inquiry. Such a qualifier would be warranted, according to the commenter, because persons who are not transaction parties may not be familiar with CFIUS and its authorities.

The final rule makes no change in response to this comment. As discussed in the proposed rule, CFIUS, acting on behalf of the President, currently has authority pursuant to section 705 of the DPA to obtain information from “any person as may be necessary or appropriate . . . to the enforcement or administration of [section 721 and the regulations thereunder].” Therefore, CFIUS may, if appropriate, request and compel through issuance of a subpoena the production of information not only from transaction parties but also from other persons to aid in the enforcement or administration of the CFIUS statute and regulations. The proposed rule addressed requests for information when such information pertains to a transaction that has been notified or declared to the Committee or, in certain circumstances, a transaction for which no notice or declaration has been submitted (a non-notified transaction). The Committee proposed to be able to seek and compel information to enable it to determine whether a transaction is a covered transaction, whether it may raise national security concerns such that the Committee should review it (if it is a covered transaction), and whether the transaction is of a type for which submission of a declaration was mandatory. Because any request made or subpoena issued must be in furtherance of one of the foregoing purposes, as specified in the proposed rule, the Committee's authority is not “without any limitation whatsoever,” as suggested by the commenter. Furthermore, in determining the sufficiency of a party's response to an inquiry, the Committee would assess whether the information provided adequately responded to the question posed, as the commenter suggests. In determining whether to issue a request for information or (as appropriate) subpoena to a person other than the transaction parties, CFIUS will consider the relationship of the other person to the relevant transaction and the information sought and will comply with applicable confidentiality provisions in section 721(c). In addition, as with information submitted by transaction parties, CFIUS will treat information submitted by third parties in accordance with its confidentiality obligations. It would be challenging to specify in regulations an exhaustive list of “other persons” to whom CFIUS may issue requests (or, as appropriate, subpoenas) for information. The identity of such other persons may vary depending on the nature of the transaction and transaction parties as well as the information that CFIUS needs to obtain. The Committee can envision situations in which it would seek information from third persons such as banks, underwriters, or service providers to transaction parties. There may be situations in which relevant information is possessed by other third parties and the Committee would consider it appropriate to seek information from such third parties.

Moreover, the Committee does not consider it appropriate to put in place what the commenter refers to as a “knowledge qualifier” for purposes of determining whether a third party's omission of information from a submission to CFIUS constitutes a violation of the statute or regulations. (As noted above, while the commenter used the phrase “knowledge qualifier,” CFIUS understood it to be referring to the responding party's knowledge with respect to whether information is appropriate to include in response to the Committee's information request.) For CFIUS to impose a penalty on a transaction party or other person for an omission of information, the omission would have to be material. That condition appears to address the concern underlying the comment at issue. Further, when CFIUS requests information—whether from a transaction party or a third party—it identifies its authority for doing so, and that enables the respondent to evaluate applicable obligations itself or with legal counsel.

Another commenter addressed the proposal to expand the categories of information that CFIUS can request from parties to non-notified transactions. As noted above, under the proposed rule CFIUS would be able to request not only information relevant to determining whether a transaction is a covered transaction but also information relevant to national security risk (and whether a transaction is subject to the mandatory declaration provisions). The commenter expressed concern that, if adopted, this provision would allow CFIUS to inquire about transactions that are outside its jurisdiction ( i.e., transactions that are not covered transactions), and parties to those transactions would be obligated to respond.

The final rule makes no change in response to this comment. Consistent with its statutory obligation to establish a process to identify certain non-notified transactions (section 721(b)(1)(H)) and the current regulations ( see § 800.501(b), and with respect to covered real estate transactions, see § 802.501(b)), CFIUS requests information about non-notified transactions only where the Committee has determined that the transaction “may be a covered transaction and may raise national security considerations.” Before requesting that parties notify their transaction to CFIUS, the Committee assesses jurisdiction and issues a request only if the Committee determines that the transaction is, in fact, a covered transaction and may raise national security considerations. Expanding the information that CFIUS may request from parties to non-notified transactions to include information pertaining to national security risk would not replace the full risk-based assessment that occurs during the formal review of a declaration or notice. Nor would it replace or circumvent the threshold determination made by CFIUS as to whether a transaction is a covered transaction. Engaging in preliminary fact-finding relevant to national security considerations, however, could help the Committee determine whether and when to request a notice from transaction parties. As explained in the proposed rule, this fact-finding should help focus the transactions the Committee requests for filing, benefitting both transaction parties and national security.

Several commenters expressed the view that three business days is not enough time for transaction parties to substantively respond to mitigation proposals, and that imposing such a time frame will not improve the mitigation negotiation process. These comments are discussed in more detail below along with the change in the final rule made in response to these comments.

One commenter expressed the view that mitigation proposals can introduce measures that would significantly impact the efficiency and competitiveness of the U.S. business and can also reflect an imperfect understanding of the U.S. business, including its technology and operations. Under such circumstances, transaction parties may struggle to determine the appropriate response to the Committee, making it a challenge to respond in three days. Another commenter expressed the view that the initial draft of a mitigation agreement, which is often developed by CFIUS, may not reflect a full understanding of the transaction parties' operations, which in turn may necessitate extensive analysis and revision by the transaction parties that often takes more than three business days. The commenter also expressed strong support for earlier engagement between the Committee and transaction parties in the mitigation proposal process and a standardized and transparent process for implementing mitigation agreements for both CFIUS and transaction parties. The commenter suggested the Committee create a standard and transparent process to create a record of how mitigation agreements are to be interpreted and applied post-execution to bring clarity and facilitate compliance, particularly when there is staff turnover or when enforcement personnel are different from the personnel involved in the negotiation of the agreement. A third commenter expressed the view that a three-day deadline could preclude input on mitigation measures from relevant business units. A fourth commenter expressed the view that the majority of transaction parties are incentivized to work collaboratively with the Committee to negotiate mitigation proposals as transactions are often notified to CFIUS prior to their completion, in some cases with CFIUS clearance as a condition for closing the transaction. The commenter noted that the Committee and transaction parties are better served when there is additional time to fully consider how proposed mitigation terms would be implemented. Though the proposed rule included the option for extension requests, the commenter expressed that transaction parties may spend too much time preparing such a request as opposed to preparing a substantive response to the Committee. Another commenter expressed the view that three business days is not enough time for transaction parties to review proposed mitigation measures, analyze the operational considerations of such measures, coordinate internally, reach agreement, and prepare a substantive response to CFIUS. The commenter further expressed that such a time frame is not analogous to the time frame for transaction parties to respond to information requests given the complexity of the issues associated with mitigation agreements. The final commenter on this topic noted that a three-day time frame may result in transaction parties accepting mitigation terms without conducting the requisite analysis and assessment.

Several commenters also proposed alternatives to a standard three-day response time frame. Some of these commenters suggested that CFIUS impose a time frame not as a routine matter but only when, in the discretion of the Staff Chairperson, a fixed deadline is determined to be warranted by relevant circumstances, with extensions available upon request and as needed. For example, the Staff Chairperson might impose a deadline if prior interaction with the transaction parties has shown them to be insufficiently responsive. Commenters also suggested that the three-day time frame be extended to five business days, and one commenter suggested 10 business days. To help resolve mitigation proposals in the time required by statute, one commenter suggested that a time frame be implemented for the Committee's proposal of mitigation terms. Additionally, commenters expressed the view that rejection of a notice, the remedy for failure to respond in the time frame specified, would not be in the interest of national security, because removing the case from CFIUS review until the transaction parties refile the transaction would delay the implementation of effective mitigation measures. The commenters noted that this is most relevant for closed transactions, where an extant risk may be present and transaction parties are not as incentivized to finalize review of the transaction with CFIUS. One commenter suggested that rejection in this instance should require approval of a Secretary or Deputy Secretary from each CFIUS member agency, akin to the current requirement in CFIUS regulations with respect to a 15-day extension of the statutory investigation period in extraordinary circumstances. The commenters suggested that CFIUS utilize its existing authority to impose interim mitigation measures to address national security risk pending a finalized mitigation agreement.

One commenter expressed the view that interim mitigation measures better address risks to national security that arise from closed transactions, and that such measures are also effective at addressing immediate national security risks that arise from pre-closing transactions. Another commenter further cited to the Committee's authority to impose mitigation measures (beyond interim measures) which, in the commenter's view, is a more effective tool to facilitate efficient negotiation of mitigation agreements.

In response to these comments, the final rule does not contain a three-day time frame for responding to mitigation proposals as a default rule in each instance the Committee sends mitigation terms to parties. Instead, it provides that the Staff Chairperson may impose a time frame of no fewer than three business days on a discretionary basis in consideration of certain factors identified in the regulations. As discussed in the preamble to the proposed rule, in CFIUS's experience there have been instances in which transaction parties have been relatively less motivated to respond promptly to a mitigation proposal, and in some of those instances delayed responses have impeded the Committee's ability to address national security risks and fulfill its statutory obligation to complete an investigation in 45 days. Based on that experience, allowing the Staff Chairperson, at their discretion, to impose a time frame for response to a mitigation proposal is warranted. In exercising that discretion, the Staff Chairperson may consider the nature of the transaction, the time remaining in the investigation, and the transaction parties' past responsiveness, among other factors. This change from the proposed rule was made in consideration of the comments articulating specific challenges in negotiating effective mitigation terms that a U.S. business can operationalize within a three-day, broadly applicable time frame. Because CFIUS must coordinate input from subject matter experts and Committee staff across the nine member agencies, a time frame for CFIUS to provide mitigation proposals, as one commenter suggested, is similarly not feasible. The Committee recognizes the importance of allowing sufficient time for consideration and negotiation, and also appreciates that many transaction parties negotiate with the Committee expeditiously. However, there are some instances in which the timeliness of resolution is not a compelling motivation for the transaction parties, and it is in those situations that the Staff Chairperson may determine it appropriate to impose a time frame for a party's response.

Additionally, the final rule retains the proposal to allow CFIUS to reject a notice as a remedy for parties' failure to respond to proposed mitigation terms in the time frame specified for two independent reasons. First, rejection is consistent with the Staff Chairperson's existing authority to reject a notice for any of the reasons listed under §§ 800.504(a) and 802.504(a), including for a failure to provide follow-up information within three business days of CFIUS's request. Approval by a Secretary or Deputy Secretary, as suggested by one commenter, would not be consistent with this existing rejection framework. Second, while rejection of the notice may not be an appropriate remedy in every instance of a missed deadline, as the commenters point out, there are circumstances in which rejection due to failure to substantively respond to a mitigation proposal within the specified time frame would be appropriate and in the interest of national security (for instance, where parties have not provided timely responses but are interested in receiving CFIUS approval in a timely manner). Accordingly, to account for the unique circumstances of each transaction, the authority of the Committee, acting through the Staff Chairperson, to reject the notice on this basis would be discretionary.

In response to comments that CFIUS's authority to impose conditions to mitigate national security risk is a better remedy than rejection for failure to respond to mitigation proposals, and that interim mitigation conditions are already an effective tool, the final rule makes no changes. However, when parties fail to respond to such proposals and when otherwise necessary, the Committee may exercise its existing authority under section 721(b)(2)(A) and ( l )(3)(A) to impose and enforce any condition with any party to a covered transaction to mitigate any risk to the national security of the United States that arises as a result of a covered transaction. CFIUS has the authority to impose such measures on a final or interim basis at any point during a covered transaction's review or investigation. For example, CFIUS may impose measures on the parties to a covered transaction to address specific national security concerns identified during the review or investigation of a covered transaction until such time that the Committee has concluded action. Pursuant to section 721( l )(1), CFIUS also has the authority to, on an interim basis, suspend a proposed or pending covered transaction that may pose a risk to the national security of the United States for such time as the covered transaction is under review or investigation. Conditions may also be imposed on a final basis for transactions prior to closing, as well as for completed transactions. CFIUS will consider the appropriateness and effectiveness of imposing conditions on an interim or final basis in determining whether to specify a time frame to respond to mitigation proposals. Any condition imposed would be based on a risk-based analysis conducted by the Committee and would be reasonably calculated to be effective, allow for compliance in an appropriately verifiable way, and enable effective monitoring of compliance with and enforcement of the terms of the condition.

One commenter requested that the Treasury Department clarify the rationale for the increase in the maximum civil monetary penalty, and that the maximum not be increased to $5,000,000 in certain contexts. The commenter suggested that only transactions valued at less than $5,000,000 should be subject to a penalty up to $5,000,000 and that for transactions valued at $5,000,000 or more, where transaction value can serve as the maximum, the penalty maximum should not be revised or revised only modestly. With respect to imposing monetary penalties for breaches of a mitigation agreement, the commenter also expressed the view that most breaches occur due to human error or a lack of understanding of the mitigation terms. Alternatively, several commenters expressed support for increasing the penalty maximum. One commenter expressed support for a penalty up to $5,000,000, and two commenters suggested that the penalty maximum be higher than $5,000,000. The final rule makes no changes to the proposed text of §§ 800.901 and 802.901 in response to these comments.

Under the regulations being amended, CFIUS has the authority to impose a maximum civil monetary penalty of $250,000 for submission of a declaration or notice with a material misstatement or omission, or the making of a false certification. CFIUS also had the authority to impose a maximum civil monetary penalty of the greater of $250,000 or the value of the transaction for failure to file a mandatory declaration and for violating a material provision of a mitigation agreement, condition, or order. The Committee's statutory penalty authority at section 721(h)(2)(A) provides no maximum dollar amount. The current penalty maximum of $250,000 was established through regulations issued over 15 years ago and has never been adjusted. CFIUS's experience in reviewing hundreds of transactions annually and monitoring compliance with over 200 national security agreements is that a higher maximum penalty for transactions of any size would be more effective to address the conduct that occurred and to deter future violations. Independent of that experience, as discussed in the proposed rule, some transactions have a low transaction value, which makes the value of the transaction an inadequate cap for an appropriate penalty. In response to the comment that most violations are unintentional, the Treasury Department notes that consistent with current practice, the finding of a violation will not necessarily lead to a monetary penalty. The maximum penalty will serve as an upper limit in cases where a penalty is appropriate; each penalty assessment will continue to be based on the nature of the violation; and CFIUS will continue to take into account the aggravating and mitigating factors surrounding the conduct ( see the CFIUS Enforcement and Penalty Guidelines at 87 FR 66220).

One commenter expressed the view that the proposed rule would deter foreign investment into the United States. The Treasury Department notes that CFIUS operates within the United States' longstanding open investment policy and focuses solely on the national security risks posed by transactions before it. Not all foreign direct investment in the United States is subject to CFIUS's jurisdiction, and this rule does not change that jurisdiction or national security mandate. As such, the final rule makes no change in response to this comment.

Additionally, over 700 comment submissions included duplicate or near-duplicate comments that broadly expressed support for CFIUS, including the expansion of CFIUS's investigative capabilities and the Committee's authority to impose penalties. Several of these submissions also included comments expressing views that are outside the scope of CFIUS and the proposed rule. For example, one commenter suggested that foreign investment into residential real estate should be curtailed to alleviate homelessness, and another suggested that large corporations should be broken up to benefit consumers. Two other comment submissions included comments on topics not addressed in the proposed rule. One commenter discussed their views regarding marijuana production in Maine, and another expressed views on the U.S. political system and increases in the cost of certain goods. In addition, one comment submission was a test comment with no other content. The final rule makes no changes in response to these comments.

The amendments published in this final rule will apply from the effective date set forth herein. Many of the provisions in this final rule pertain to CFIUS processes and will apply to all Committee actions after the effective date. For example, parties to a transaction not submitted to CFIUS will be required to provide requested information to enable the Committee to determine whether a transaction may raise national security considerations in connection with any information request the Committee makes pursuant to § 800.501(b)(1) after the effective date. Transaction parties currently subject to a mitigation agreement, condition, or order may be required to provide requested information to enable the Committee to monitor and enforce any agreement pursuant to § 800.801(a)(3) or § 802.801(a)(3) after the effective date.

For transactions already under review or investigation by the Committee at the time of the effective date of this final rule, the amendments to §§ 800.504 and 802.504, which allow the Committee to impose deadlines for responses to proposed national security agreements, will not apply. So that transaction parties have sufficient notice of the new requirements, those sections will apply only to notices accepted by the Committee after the effective date. Similarly, the extended deadlines in §§ 800.901(f) and 802.901(e) will not apply to penalty notices and petitions pending at the time of the effective date. The 20-business-day deadline for responses and the Committee's authority to extend such a time frame under compelling circumstances will apply to parties that receive a notice of penalty issued by CFIUS after the effective date.

For transaction parties subject to a mitigation agreement, condition, or order as of the effective date of this final rule, the penalty provisions for a violation of such agreement, condition, or order in effect at the time of the agreement, condition, or order will continue to apply, as specified in §§ 800.901(c)(1) and (2) and 802.901(b)(1), as amended. However, conduct by such parties that is not governed by an agreement, condition, or order, such as a material misstatement or omission made to the Committee, will be subject to enforcement under the regulations as amended by this final rule after the effective date. CFIUS may impose a maximum civil monetary penalty of $5,000,000 for any violation of any national security agreement executed after the effective date of the final rule.

The provisions of this final rule are separate and severable from one another. If any provision of this rule is stayed or determined to be invalid, it is the Treasury Department's intention that the remaining provisions shall continue in effect. Each of the amendments in this rule pertains to a different part of CFIUS's process—including non-notified information requests, mitigation proposals during review and investigation, compliance monitoring, and penalty determinations—and the changes to each of these processes are not dependent on one another.

This rule is not subject to the general requirements of Executive Order 12866, as amended, which covers review of regulations by the Office of Information and Regulatory Affairs in the Office of Management and Budget (OMB), because it relates to a foreign affairs function of the United States, pursuant to section 3(d)(2) of that order. In addition, this rule is not subject to review under section 6(b) of Executive Order 12866 pursuant to section 1(d) of the June 9, 2023, Memorandum of Agreement between the Treasury Department and OMB, which states that CFIUS regulations are not subject to OMB's standard centralized review process under Executive Order 12866.

The collection of information contained in this rule has been previously submitted to the OMB for review in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) and approved under OMB Control Number 1505-0121. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid OMB Control Number.

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) generally requires an agency to prepare a regulatory flexibility analysis, unless the agency certifies that the rule will not, once implemented, have a significant economic impact on a substantial number of small entities. The RFA applies whenever an agency is required to publish a general notice of proposed rulemaking under section 553(b) of the Administrative Procedure Act (APA) (5 U.S.C. 553), or any other law. As set forth below, because regulations issued pursuant to the DPA, such as these regulations, are not subject to the rulemaking requirements of the APA or other law requiring the publication of a general notice of proposed rulemaking, the RFA does not apply.

The final rule makes amendments to the regulations implementing section 721 of the DPA (85 FR 3112 and 85 FR 3158), which the Treasury Department previously determined would not significantly impact a substantial number of small entities. The amendments in this final rule do not change that analysis or determination. The Treasury Department also invited public comment on how the proposed rule would affect small entities and did not receive any specific comments on this topic.

This final rule has been submitted to the OMB's Office of Information and Regulatory Affairs, which has determined that the rule is not a “major” rule under the Congressional Review Act.

For the reasons set forth in the preamble, the Treasury Department amends 31 CFR parts 800 and 802 as follows:

The information presented in this preamble is organized as follows:

As is discussed in further detail later, the EPA is taking this action as a result of the United States Court of Appeals for the District of Columbia mandate in Environ. Comm. Fl. Elec. Power v. EPA, 94 F.4th 77 (D.C. Cir. 2024). In that decision, the D.C. Circuit vacated portions of the EPA's 2015 findings of substantial inadequacy and SIP calls for provisions applying to excess emissions during periods of SSM (“2015 SSM SIP Call”)  1 as it applied to State provisions including automatic exemptions, director's discretion provisions, and affirmative defenses that are functionally exemptions. Subsequent to the issuance of the 2015 SIP Call, EPA issued two findings of failure to submit (FFS) impacting multiple States. 2 3 This action seeks to withdraw relevant parts of the FFS that were invalidated by the D.C. Circuit's vacatur. Because of the D.C. Circuit's vacatur, there is no longer a legally valid predicate submission obligation for those particular SIP-called provisions. As a result, the EPA's findings that such obligation was not met are also no longer valid and must be withdrawn. Concurrently, the EPA is also issuing a parallel proposal of this withdrawal action. See the proposed action published in the Proposed Rules section of this issue of the Federal Register . If we receive no significant adverse comment, we will not take further action on the proposed action and this direct final action will become effective as prescribed.

Submit your comments, identified by Docket ID Nos. EPA-HQ-OAR-2021-0863 and EPA-R03-OAR-2023-0179, at https://www.regulations.gov (our preferred method), or the other methods identified in the ADDRESSES section. Once submitted, comments cannot be edited or removed from the docket. The EPA may publish any comment received to its public docket. Do not submit to EPA's docket at https://www.regulations.gov any information you consider to be Confidential Business Information (CBI), Proprietary Business Information (PBI), or other information whose disclosure is restricted by statute. Our preferred method to receive CBI, PBI, or other information who disclosure is restricted by statue is for it to be transmitted electronically using email attachments, File Transfer Protocol (FTP), or other online file sharing services ( e.g., Dropbox, OneDrive, Google Drive). Electronic submissions must be transmitted directly to the OAQPS CBI Office using the email address, oaqpscbi@epa.gov, and should include clear CBI or PBI markings. If assistance is needed with submitting large electronic files that exceed the file size limit for email attachments, and if you do not have your own file sharing service, please email oaqpscbi@epa.gov to request a file transfer link. If sending CBI or PBI information through the postal service, please send it to the following address: OAQPS Document Control Officer (C404-02), OAQPS, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711, Attention Docket ID Nos. EPA-HQ-OAR-2021-0863 and EPA-R03-OAR-2023-0179. The mailed CBI or PBI material should be double wrapped and clearly marked. Any CBI or PBI markings should not show through the outer envelope. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission ( i.e., on the web, cloud, or other file sharing system). Please visit https://www.epa.gov/dockets/commenting-epa-dockets for additional submission methods; the full EPA public comment policy; information about CBI, PBI, or multimedia submissions; and general guidance on making effective comments.

The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2021-0863 (as it pertains to the January 2022 national FFS) and Docket ID No. EPA-R03-OAR-2023-0179 (as it pertains to the April 2023 West Virginia FFS). All documents in the docket are listed in the https://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically at https://www.regulations.gov or in hard copy at the U.S. Environmental Protection Agency, EPA Docket Center, William Jefferson Clinton West Building, Room 3334, 1301 Constitution Ave. NW, Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the Office of Air and Radiation Docket is (202) 566-1742.

For questions related to specific air agencies mentioned in this notice, please contact the appropriate EPA Regional Office:

On January 12, 2022, the EPA took final action (“January 2022 FFS”)  4 to find that 12 States and local air agencies failed to submit SIP revisions required by the CAA in a timely manner to address the EPA's 2015 findings of substantial inadequacy and “SIP calls” for provisions applying to excess emissions during periods of SSM (“2015 SSM SIP Call”  5 ) that were statutorily due no later than November 22, 2016. On April 17, 2023, the EPA Region 3 took final action (“April 2023 FFS”) to find that the State of West Virginia failed to timely submit a SIP revision required by the CAA to address the deficiencies identified in the EPA's 2015 SSM SIP Call that was statutorily due no later than November 22, 2016. 6 In total, the 13 States and/or local air agencies that were issued an FFS can be found in Table 1. For those States and/or local air agencies subject to the FFS for which EPA has fully approved their submitted SIP revision—Arkansas, California-San Joaquin Valley Air Pollution Control District, and North Carolina-Forsyth—the FFS obligation has been fulfilled, and there is no need to for the EPA or those States to take further action. The States and/or local air agencies which have not submitted a SIP revision in response to the FFS or for which the EPA has not taken final action on their submittal— i.e., the States for which some obligation still exists—can be found in Table 2.

On March 1, 2024, the United States Court of Appeals for the District of Columbia Circuit issued a decision in Environ. Comm. Fl. Elec. Power v. EPA, 94 F.4th 77 (D.C. Cir. 2024). The Court granted the petitions in part, vacating the SIP calls that were based on SIP provisions that included automatic exemptions, director's discretion provisions, and “complete affirmative defenses” ( i.e. affirmative defenses that are functionally exemptions); and denied the petitions in part, affirming the SIP calls based on SIP provisions that included overbroad enforcement discretion provisions and affirmative defenses against specific relief. As a result of the D.C. Circuit's decision in Environ. Comm. Fl. Elec. Power v. EPA, the EPA is partially withdrawing the January 2022 FFS and the April 2023 FFS. Because certain portions of the SIP call were vacated by the D.C. Circuit and therefore have no legal effect, the States and/or local air agencies with provisions to which those vacated portions of the SIP call previously applied no longer have a legal obligation to submit the revisions that the EPA had originally determined were required pursuant to the 2015 SSM SIP Call. 8 Further, as there is no longer a predicate submission obligation for those particular SIP-called provisions, the EPA's findings that such obligation was not met are no longer valid and must be withdrawn.

As a result of this final action, the January 22, 2022, national FFS and April 17, 2023, FFS are partially withdrawn with respect to the State and/or local air agency SIP provisions listed in Table 3.

For those State and/or local air agency SIP provisions listed in Table 3 of Section III for which the FFS are withdrawn, the CAA deadlines for the EPA to impose sanctions under CAA sections 179(a) and (b) and promulgate a FIP under CAA section 110(c) are no longer applicable. For those State and/or local jurisdiction SIP provisions in which the FFS are not withdrawn and are still applicable, the CAA deadlines for the EPA to impose sanctions under CAA sections 179(a) and (b) and promulgate a FIP under CAA section 110(c) remain in effect as previously established. 10 11 The States and/or local air agencies for which the FFS are not withdrawn and mandatory CAA deadlines remain in effect can be found in Table 4.

In light of the D.C. Circuit's decision in Environ. Comm. Fl. Elec. Power v. EPA, the EPA is taking final action to partially withdraw its finding that 12 air agencies have failed to submit SIP revisions in response to the 2015 SSM SIP Action that were statutorily due no later than November 22, 2016, and to partially withdraw the EPA Region 3's finding that West Virginia failed to submit a SIP revision in response to the 2015 SSM SIP Action that was statutorily due no later than November 22, 2016. The six States and/or local air agencies affected by this final withdrawal action are: Alabama, District of Columbia, Ohio, Rhode Island, South Dakota, and West Virginia.

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

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

This action does not impose an information collection burden under the provisions of the PRA. This final action does not establish any new information collection requirement apart from what is already required by law. This action relates to the requirement in the CAA for States to submit SIPs in response to findings of substantial inadequacy under CAA section 110(k)(5).

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This action relates to the requirement in the CAA for States to submit SIPs in response to findings of substantial inadequacy under CAA section 110(k)(5).

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

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

This action does not have Tribal implications as specified in Executive Order 13175. This action finds that several air agencies have failed to submit SIP revisions in response to findings of substantial inadequacy under section 110(k)(5) of the CAA. No Tribe is subject to the requirement to submit an implementation plan under the findings of inadequacy relevant to this action. Thus, Executive Order 13175 does not apply to this action.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it relates to the requirement in the CAA for States to submit SIPs in response to findings of substantial inadequacy under CAA section 110(k)(5) and does not directly or disproportionately affect children.

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

This final action does not involve technical standards.

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

The EPA believes it is not practicable to assess whether the conditions that exist prior to this proposed action result in disproportionate and adverse effects on people of color, low-income populations, and/or indigenous peoples. While it is difficult to assess the environmental justice implications of this proposed action because the EPA cannot geographically identify or quantify the resulting source-specific emission reductions, the EPA recognizes the potential for neutral or adverse environmental justice issues associated with this action. However, the EPA views this action as a necessary procedural step following the D.C. Circuit decision and vacatur of portions of the 2015 SSM SIP call.

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

Section 307(b)(1) of the CAA governs judicial review of final actions by the EPA. This section provides, in part, that petitions for review must be filed in the United States Court of Appeals for the District of Columbia Circuit: (i) when the agency action consists of “nationally applicable regulations promulgated, or final actions taken, by the Administrator,” or (ii) when such action is locally or regionally applicable, but “such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination.” For locally or regionally applicable final actions, the CAA reserves to the EPA complete discretion whether to invoke the exception in (ii).

This final action is “nationally applicable” within the meaning of CAA section 307(b)(1). In the alternative, to the extent a court finds this final action to be locally or regionally applicable, the Administrator is exercising the complete discretion afforded to him under the CAA to make and publish a finding that this action is based on a determination of “nationwide scope or effect” within the meaning of CAA section 307(b)(1). 12 This final action consists of a partial withdrawal of findings of failure to submit required SIPs from six States and/or local air jurisdictions, including the District of Columbia, located in 5 of the 10 EPA regions, and in 6 different federal judicial circuits. 13 This final action is also based on a common core of factual findings concerning the receipt and completeness of the relevant SIP submittals. For these reasons, this final action is nationally applicable or, alternatively, the Administrator is exercising the complete discretion afforded to him by the CAA and hereby finds that this final action is based on a determination of nationwide scope or effect for purposes of CAA section 307(b)(1) and is hereby publishing that finding in the Federal Register .

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the District of Columbia Circuit within 60 days from the date this final action is published in the Federal Register . Filing a petition for reconsideration by the Administrator of this final action does not affect the finality of the action for the purposes of judicial review, nor does it extend the time within which a petition for judicial review must be filed and shall not postpone the effectiveness of such rule or action.

The Travel and Transportation Reform Act of 1998 (Pub. L. 105-264) established the statutory requirement for agencies to perform an audit of transportation expenses prior to payment, assigned to the Administrator of GSA (Administrator) the authority to prescribe regulations for the audit of transportation invoices prior to payment, and the statutory authority for audit oversight of transportation invoices to protect the financial interests of the Government (31 U.S.C. 3726). The law also provides the Administrator the power to conduct prepayment or postpayment audits of transportation bills of any Federal agency. GSA has codified these requirements in 41 CFR part 102-118, Transportation Payment and Audit (Federal Management Regulation (FMR) part 102-118).

Certain other statutes collectively empower the Administrator to create regulations governing various aspects of Federal procurement for transportation, ensuring compliance with Federal laws, and promoting the efficient use of Government resources. These include 40 U.S.C. 501, which grants the Administrator the authority to establish regulations for executive agencies regarding the procurement and supply of personal property, nonpersonal services, and related functions, including transportation and transportation services. Additionally, 49 U.S.C. 40118 authorizes the Administrator to prescribe regulations allowing agencies to expend appropriations for transportation in violation of the requirements of said section.

GSA last amended FMR part 102-118 on May 31, 2022 (87 FR 32320), to perform editorial and technical changes. That direct final rule introduced the GSA Transportation Audit Management System (TAMS), corrected inaccurate and outdated information, and removed obsolete references to programs, legal citations, and forms. It revised general contact information, corrected hyperlinks, clarified conditions for using certain forms and revised outdated and inaccurate administrative procedures.

This final rule modifies definitions that apply to this part, which include incorporating previously undefined terms such as Civilian Board of Contract Appeals (CBCA), refund, and Transportation Audits Management System (TAMS). Furthermore, definitions of forms used exclusively by the GSA Transportation Audits Division have been removed from individual sections and added to the definitions, while terms such as EDI signature, reparation, statement of difference rebuttal, and virtual Government Bill of Lading (GBL), have been removed from the definitions section because the terms are not utilized in this part. Additionally, some definitions have been amended to enhance clarity including the terms cash, Government contractor-issued charge card, and offset. GSA updated the definition of a Government contractor-issued charge card and introduced a new definition for an individually billed travel card. This change was made to define and explain the distinction between the two types of charge cards that the Government may use to procure transportation. The revised definitions clarify agency responsibilities, thereby significantly reducing ambiguity and the potential for non-compliance.

This final rule continues to improve upon the changes introduced in the aforementioned direct final rule published on May 31, 2022. That rule eliminated unnecessary procedures for agencies to request GBL and Government Transportation Request (GTR) forms, along with their corresponding control numbers. GSA has amended this FMR part to provide agencies with additional information regarding the requirement to assign numbers to these forms and to manage and track each issued GBL and GTR transportation document.

With the publication of this rule, GSA grants agencies discretion in using a GBL for domestic shipping. Agencies, and not GSA, are responsible for maintaining physical control and accountability of the GBLs they issue. In its present form, this FMR part restricts the use of a GBL to international shipments, however GSA acknowledges that agencies might occasionally need to issue a GBL for domestic shipments. Therefore, since agencies are obligated to manage the GBLs they issue, they should have the flexibility to decide when using a GBL is necessary to fulfill their mission. Providing Federal agencies with the latitude to issue GBLs when it is mission-essential enhances their ability to respond promptly and efficiently to critical needs, ensures better control and oversight of transportation processes, optimizes resource use, and can result in cost savings and legal protections. This flexibility is crucial for maintaining the effectiveness and efficiency of Federal operations, especially in times of urgency. Additionally, GSA clarifies that a bill of lading can be used to procure both transportation and transportation services.

This rule updates the requirement for agencies to provide a copy of each quotation, tender, or contract of special rates, fares, charges, or concessions with TSPs to the GSA Transportation Audits Division. The revised regulation now requires agencies to send copies of rates provided by pipeline carriers as well. GSA corrected information including legal references related to actions by and against the Government. The revised information now lists proper authorities and deadlines for filing freight charges, loss and damage claims, and filing claims against a TSP for the collection of overcharges.

Lastly, GSA has removed gender pronouns from this FMR part. The removal of gender pronouns promotes inclusivity and modernizes the language of the regulation.

This final rule provides agencies with additional clarification on the role of the TAMS and its benefit to TSPs, specifically when filing certain claims. It also outlines the circumstances under which Federal agencies use the TAMS. Additionally, when agencies submit their paid transportation invoices and other documentation through the TAMS, it allows the GSA Transportation Audits Division to maintain and store these transportation records in accordance with the General Records Schedule.

The GSA Transportation Audits Division maintains a central repository of electronic transportation billing records for legal and auditing purposes. Therefore, to comply with the Office of Management and Budget Memorandum M-23-07, GSA now requires agencies to submit their payment documentation for a post payment audit via the TAMS. Other documents that may need to be sent to GSA Transportation Audits Division will only be accepted electronically via email. Consequently, physical mailing addresses have been removed from this FMR part. This change is expected to reduce costs for agencies, streamline the reporting process, and eliminate the need for mailing documents to the GSA Transportation Audits Division. TSPs are also permitted to use the TAMS to file a claim with the GSA Transportation Audits Division; however, its use by TSPs is not required. It is also important to note that as of July 2022, all department level agencies were compliant with this requirement, therefore mandating this requirement should have no additional effect on agency procedures.

GSA has also included updated regulatory language addressing the agency's role in adjudicating disputes arising from audits of transportation bills. The Administrator of GSA has the authority to “adjudicate transportation claims which cannot be resolved by the agency procuring the transportation services, or the carrier or freight-forwarder presenting the bill” (31 U.S.C. 3726(c)). GSA acknowledges that its notice of proposed rulemaking (89 FR 12296, February 16, 2024) did not expressly state that such authority is limited to “transportation claims which cannot be resolved by the agency procuring the transportation services, or the carrier or freight-forwarder presenting the bill.” 31 U.S.C. 3726(c). Upon further review of the statute and other relevant factors, including judicial decisions interpreting these provisions, GSA has updated the regulatory text in this final rule to accurately reflect the statutory text.

GSA's procedures for performing an audit are incorporated in subpart F of this FMR part and apply to all procurement vehicles and methods available to agencies to procure transportation and transportation services. This language is included for clarity, creates no additional cost, and requires no additional effort by the TSP.

In the proposed rule published at 89 FR 12296 on February 16, 2024, GSA provided the public a 60-day comment period which ended on April 16, 2024. GSA received one timely comment, which is from an anonymous source. As a result of the comment, minor changes were made from the proposed rule to the final rule.

Comment: “I agree that a change is needed to § 102-118.460(a)(5) [sic] because the current reference is incorrect however I think the timeline for filing a claim with the court should remain at 1 year.”

Response: After review, GSA restored the time limit in the “loss and damage” column of § 102-118.460(a)(5) to 1-year. Only the legal references have been revised in this section.

In addition, GSA received an untimely comment from Crowley Maritime Services. In the comment, Crowley requested that the agency “extend” the comment period, but Crowley provided no explanation as to why an extension would be appropriate. GSA therefore declines to consider the late-filed comment. GSA also notes that Crowley's comment primarily concerns the scope of the agency's dispute-resolution authority. This rule's discussion of that authority is consistent with the relevant statutory language. See 31 U.S.C. 3726.

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

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

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

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

For the reasons set forth in the preamble, GSA amends 41 CFR part 102-118 as follows:

Executive Order (E.O.) 13988, Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation, dated January 20, 2021, establishes a policy “to prevent and combat discrimination on the basis of gender identity or sexual orientation, and to fully enforce Title VII and other laws that prohibit discrimination on the basis of gender identity or sexual orientation.”

The Federal Government must be a model for diversity, equity, inclusion, and accessibility, where all employees are treated with dignity and respect. While GSA is not aware of any specific instances where language in this FMR part has been used to discriminate against an employee, GSA believes it is important to prevent any potential discrimination or the appearance of it.

Consistent with the American Psychological Association (APA) Style Guide, 7th Edition, Publication Manual Section 5.5 guidance on “Gender and Pronoun Usage”, GSA is replacing gender-specific pronouns, such as he, she, his, or her, with more inclusive terminology.

This final rule removes gender-based pronouns from this FMR part and replaces them with more inclusive language. The grammatical and technical changes do not alter any definition, operation, or interpretation of the FMR.

There is no expected cost imposed upon the public as a result of this rule since the changes are technical.

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

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

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

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

For the reasons set forth in the preamble, GSA amends 41 CFR part 102-117 as set forth below:

Table of Contents I. Background and Executive Summary II. Petitions for Reconsideration Received by NHTSA and Analysis A. No Contact B. Multiple Trials C. Equipment Requirement D. Unlimited Preconditioning and Test Runs E. Malfunction Indicator Lamp F. Deactivation G. Obstructed Pedestrian Crossing Test Correction H. FCW Auditory Signal I. FCW Visual Signal J. Cost Estimates K. Brake Pedal Robot L. Manual Transmission M. Small-Volume Manufacturers III. Petition for Rulemaking Received by NHTSA and Analysis A. Include V2X IV. Rulemaking Analyses and Notices V. Regulatory Text I. Background and Executive Summary

In November 2021, the Bipartisan Infrastructure Law (BIL), enacted as the Infrastructure Investment and Jobs Act (Pub. L. 117-58), was signed into law. BIL directed the Secretary of Transportation to promulgate a rule to establish minimum performance standards with respect to crash avoidance technology and to require that all passenger motor vehicles manufactured for sale in the United States be equipped with forward collision warning (FCW) and automatic emergency braking (AEB) systems that alert the driver if a collision is imminent and automatically apply the brakes if the driver fails to do so.

In accordance with BIL, NHTSA issued a Notice of Proposed Rulemaking (NPRM) (88 FR 38632) in June 2023, followed by a final rule (89 FR 39686) in May 2024, establishing FMVSS No. 127, “Automatic Emergency Braking Systems for Light Vehicles.” This FMVSS requires AEB, including pedestrian AEB (PAEB), systems on light vehicles. In addition to the mandate in BIL, the final rule was also issued under the authority of the National Traffic and Motor Vehicle Safety Act of 1966 (Safety Act). Under 49 U.S.C. chapter 301, the Secretary of Transportation is responsible for prescribing motor vehicle safety standards that are practicable, meet the need for motor vehicle safety, and are stated in objective terms. The responsibility for promulgation of FMVSSs is delegated to NHTSA.

The final rule includes four requirements for AEB systems for both lead vehicles and pedestrians. First, there is an equipment requirement that vehicles have an FCW system that provides an auditory and visual signal to the driver of an impending collision with a lead vehicle or a pedestrian. The system must operate at any forward speed greater than 10 km/h (6.2 mph) and less than 145 km/h (90.1 mph) for a warning involving a lead vehicle, at any forward speed greater than 10 km/h (6.2 mph) and less than 73 km/h (45.3 mph) for a warning involving a pedestrian. Similarly, the final rule includes an equipment requirement that light vehicles have an AEB system that applies the brakes automatically when a collision with a lead vehicle or pedestrian is imminent. The system must operate at any forward speed that is greater than 10 km/h (6.2 mph) and less than 145 km/h (90.1 mph) for AEB involving a lead vehicle, and at any forward speed greater than 10 km/h (6.2 mph) and less than 73 km/h (45.3 mph) for PAEB.

Second, the AEB system is required to prevent the vehicle from colliding with the lead vehicle or pedestrian test devices when tested according to the standard's test procedures. These track test procedures have defined parameters, including travel speeds up to 100 km/h (62.2 mph), that ensure that AEB systems prevent crashes in a controlled testing environment.

Third, the final rule includes two false activation tests.

Finally, the final rule requires that a vehicle must detect AEB system malfunctions, including performance degradation caused solely by sensor obstructions, and notify the driver of any malfunction that causes the AEB system not to meet the minimum proposed performance requirements. If the system detects a malfunction, or if the system adjusts its performance such that it will not meet the requirements of the finalized standard, the system must provide the vehicle operator with a telltale notification.

The final rule applies to vehicles manufactured on or after September 1, 2029. An additional year is provided for small-volume manufacturers.

NHTSA regulations allow any interested person to petition the Administrator for reconsideration of a rule. Under NHTSA's regulations, petitions for reconsideration must provide an explanation why compliance with the rule is not practicable, is unreasonable, or is not in the public interest. Additionally, petitions must be received within 45 days of the publication of the final rule. Untimely petitions for reconsideration are considered to be petitions for rulemaking. The Administrator may consolidate petitions relating to the same rule. 1

NHTSA received petitions for reconsideration from the Alliance for Automotive Innovation (the Alliance), 2 Toyota Motor North America (Toyota), 3 Volkswagen Group of America (Volkswagen), 4 and Scuderia Cameron Glickenhaus, LLC (Glickenhaus). 5 NHTSA also received a letter from Hyundai Motor Group (Hyundai), styled as a “supplemental comment,” that provides its perspective on FMVSS No. 127, which we have considered in this response to the petitions for reconsideration. 6 NHTSA also received a petition from Autotalks that NHTSA is treating as a petition for rulemaking because it was received more than 45 days after publication of the final rule. 7 The petitions requested a variety of amendments to FMVSS No. 127. These, and NHTSA's reasoning and response to each petitioned-for item, are summarized below and discussed in detail in the respective sections of the preamble of this notice.

In response to these petitions, NHTSA is granting in part and denying in part. The changes made to FMVSS No. 127 are summarized as follows.

• FMVSS No. 127 contains an equipment requirement that AEB systems activate the service brakes when a collision is imminent and that they operate under certain conditions. It also contains a performance test requirement for lead vehicle AEB that contains similar language. Petitioners requested definitions for the terms “operate” and “imminent.” NHTSA is amending the language in the performance test requirement to remove refence to “imminent” from the performance test requirement for lead vehicle AEB, to clarify that the performance test does not evaluate AEB activation timing. NHTSA is not providing a definition for “operate” because the definition of “automatic emergency braking system” in the final rule sufficiently describes how an AEB system operates. NHTSA is not providing a definition for “imminent” because the term is used consistent with its plain meaning.

• FMVSS No. 127 contains a test scenario that, when tested with very narrow vehicles at the extreme of the tolerances allowed by the test condition, resulted in a stringency beyond that intended by NHTSA. This final rule amends the test scenario to ensure the correct level of stringency.

• FMVSS No. 127 contains specifications for the FCW visual signal location. Petitioners requested additional clarity. This final rule amends the regulatory text to clarify these specifications.

• FMVSS No. 127 contains requirements for the FCW audio signal, including that in-vehicle audio must be suppressed when the FCW auditory signal is presented. Petitioners expressed several concerns about the clarity and objectivity of these requirements as well as test conditions. This final rule clarifies these requirements by stating the location of the microphone, additional vehicle conditions under which testing will occur, and amending the definitions to simplify the requirement for suppression.

This rule also denies the petitions with regards to several other requested amendments. These are as follows. For the items for which petitioners restate arguments made during the comment period for FMVSS No. 127, the reasons given for denial are the same as those stated in the final rule.

• The performance requirement for both lead vehicle and pedestrian AEB testing is collision avoidance (referred to throughout the final rule and this document as “no contact”). Petitioners requested relaxation of this requirement to allow contact at low speeds, specifically requesting 10 km/h (6.2 mph). NHTSA is rejecting this request because the no contact requirement is practicable and meets the need for safety.

• Petitioners requested that multiple test runs be allowed to achieve the no contact performance requirement (for example, that vehicles must pass on 5 out of 7 test runs) to account for variability. Petitioners noted that FMVSS No. 135, which regulates light vehicle brake systems, allows multiple test runs to meet some of the performance requirements. NHTSA is rejecting this request because FMVSS No. 127 testing is distinct from FMVSS No. 135 testing such that not allowing multiple test runs in FMVSS No. 127 is practicable and meets the need for safety.

• FMVSS No. 127 test scenarios state that the vehicle can be driven for any amount of time. Additionally, it does not place a cap on the number of tests that could be run on any given subject vehicle. Petitioners expressed concern that this standard would allow excessive driving or testing of vehicles to wear out components such that they can no longer meet the performance required by the standard. NHTSA finds further specification is unnecessary because the test does not evaluate the endurance or durability of wear parts and will not be used in such a manner.

• FMVSS No. 127 requires that vehicles illuminate a malfunction identification lamp (MIL) upon detection of a malfunction or if the AEB system adjusts its performance such that it is below the performance required by the standard. Petitioners requested additional specificity regarding the terminology in this requirement as well as a test procedure. NHTSA is rejecting this request because the requirement meets the Safety Act as written.

• FMVSS No. 127 does not permit installation of a manual control with the sole purpose of deactivating the AEB system. It does contain a provision allowing automatic deactivation in certain situations. Petitioners requested permission to install a manual deactivation control, as well as modifications to the automatic deactivation provision. NHTSA is rejecting this request because the final rule already addresses petitioners' concerns.

• Petitioners stated that NHTSA did not fully consider costs associated with compliance. No change is needed in response to this request because the final rule fully considered the costs associated with compliance.

• Volkswagen requested additional specifications for the brake pedal robot used in testing with manual brake application. NHTSA is rejecting this request for the reasons stated in the May 9, 2024 final rule.

• Petitioner Glickenhaus requested the AEB requirements not be applicable to vehicles with manual transmission. NHTSA is rejecting this request because vehicles equipped with manual transmissions and AEB are widely available.

• Petitioner Glickenhaus requested additional flexibility for very small volume manufacturers. NHTSA is rejecting this request because AEB systems are available for purchase and, in the case that a manufacturer is unable to acquire systems, the exemption processes in the Safety Act may provide relief.

The final rule requires that, when tested according to the procedures therein, the subject vehicle not collide with the test device (vehicle test device or pedestrian mannequin). The test data, discussed at length in the final rule, demonstrates that this requirement is practicable. A tested vehicle was able to meet the performance requirements in the final rule and recent NHTSA testing revealed significant improvement throughout much of the fleet in a relatively short time. These facts show that compliance by 2029 is practicable.

In the final rule we also emphasized that practicability must be viewed from the perspective that under the Safety Act, NHTSA has the authority to issue standards that are technology-forcing. 8 That is, NHTSA is empowered under the Safety Act to issue safety standards that “impel automobile manufacturers to develop and apply new technology to the task of improving the safety design of automobiles as readily as possible” such that they “require improvements in existing technology or which require the development of new technology, and is not limited to issuing standards based solely on devices already fully developed.”  9 NHTSA acknowledged that the final rule is technology-forcing, but emphasized that the standard is practicable and no single current vehicle must meet every requirement for an FMVSS to be considered practicable under the Safety Act.

Petitioners requested reconsideration on two broad grounds: first that the no-contact requirement is not practicable, and second that it does not meet the need for safety.

The Alliance stated that NHTSA has not demonstrated that the no contact requirement is practicable for the fleet. Other than the simulation data for the obstructed pedestrian crossing road scenario, the Alliance did not present any new data or analysis regarding the practicability of requiring collision avoidance in AEB compliance testing that the agency had not previously considered. 10 The Alliance noted that the final rule states that NHTSA agrees with the IIHS's comment to the NPRM that some current AEB systems are already completely avoiding collisions under the proposed AEB testing. The Alliance added, however, that IIHS did not test any vehicles at speeds faster than 70 km/h (43.5 mph), and only three out of the six tested vehicles could avoid the lead vehicle target in all of the test runs. It also stated that NHTSA conceded that no vehicle in its 2020 AEB research was able to meet all the performance requirements of the final rule for lead vehicle and PAEB systems. It also pointed out that for lead vehicle AEB systems, NHTSA's MY 2023 research showed that only one vehicle could avoid contact in each test speed and scenario, but even that vehicle did not avoid contact on every test run at the most stringent condition. The Alliance argued that a single vehicle's ability to meet the required tests some of the time does not support NHTSA's conclusion that the no-contact requirement is practicable. The Alliance also stated that the vehicles used in NHTSA's 2023 testing don't support the final rule because those vehicles were designed only to meet the performance levels stated in the 2016 voluntary commitment. 11

The Alliance stated the agency's analysis of test data demonstrate variation in performance that was not accounted for in the final rule. The Alliance stated that the final rule did not consider whether variability between vehicles or testing locations would make compliance more challenging by dictating the design margin that manufacturers need to meet to comply with the requirement. The Alliance reasoned that NHTSA's evaluation (in the FRIA) of the variability in time-to-collision (TTC) at brake activation demonstrates that this variability is meaningful and demonstrates variation in performance. The Alliance noted that NHTSA research that was conducted with three vehicles at the speed range from 16 km/h (9.9 mph) to 40 km/h (24.9 mph) showed a variation of at least 0.15 seconds in TTC at brake activation.

The test data demonstrates that the rule is practicable. In its petition, the Alliance acknowledged that NHTSA had considered all available information and test results from the agency's research and studies conducted by stakeholders such as IIHS. It also acknowledged that a tested vehicle was able to meet the performance requirements, despite not being designed to meet the requirements of the final rule. Additionally, the vehicle that was able to meet the requirements had a sales price below the market average, indicating that the requirements could be met without expensive new technologies.

NHTSA's recent testing also marked significant progress compared to its earlier research from 2020. The positive trend in AEB technology was further supported by IIHS, which highlighted substantial improvements between the 2023 and 2024 model years in the stationary lead vehicle test at 70 km/h (43.5 mph). 12 Notably, the percentage of vehicles avoiding the target in all test runs increased from 10 percent to 56 percent. These data all show that meeting the requirements of this rule by September 2029 is practicable. 13

Additionally, the Alliance's framing of vehicle and test location variability and our FRIA estimates is unconvincing. Variability between vehicles in the same model line and year (vehicle-to-vehicle variability) is determined by the manufacturer, subject to the requirement that every vehicle it sells meet the minimum safety performance. NHTSA has no reason to believe that the vehicles we tested had superior performance to other vehicles in the same model line and year. Also, vehicle-to-vehicle variability is a consideration for all FMVSS, and the Alliance provided no information to indicate that there is an issue unique to AEB. Additionally, variation in brake activation timing between manufacturers is contemplated by the structure of the rule. The final rule does not dictate brake activation timing, brake force, or any other aspects of AEB performance other than that the subject vehicle not make contact with the test device.

Regarding variability across test locations, FMVSS No. 127 specifies all the needed conditions to inform manufacturers of how we will test. These conditions were proposed in the NPRM, and commenters did not raise conditions that were not included that would affect test outcomes. Finally, the variability analysis in the FRIA is our attempt to connect the idealized test conditions to the real world when conducting benefits analyses. NHTSA understands that in the real world there will be variability that cannot be tested in an efficient way through an FMVSS, which informs our benefits calculations. However, such analysis should not be used to determine the types of results achievable in an idealized testing environment. For these reasons, NHTSA will not grant reconsideration.

The Alliance stated that the final rule improperly relied on the agency's evaluation of FMVSS No. 135 test results, which showed that braking performance of nearly all tested vehicles was much better than what the FMVSS requires. The Alliance stated that the evaluation reflects that manufacturers build compliance margins into their design for FMVSS compliance and does not support the agency's conclusion that the no-contact requirement is practicable. Furthermore, the Alliance stated that test results from FMVSS No. 135 testing are not comparable to AEB performance because the final rule requires performance from both the service brakes and a perception system, whereas FMVSS No. 135 evaluates only service brake performance. Also, the Alliance stated that the maneuvers in FMVSS No. 135 tests are conducted with a human driver putting muscular effort into the brake pedal. In contrast, there is no human input when testing the AEB system.

NHTSA's use of FMVSS No. 135 test results was justified. As an initial matter, those results were not the primary results upon which the agency determined that the requirements are practicable. They were used largely to show that the braking performance needed to meet the requirements in the final rule is present in the current fleet without the need for changes, especially with regard to heavier vehicles for which there were limitations on available test data. The results indicated that the brake performance of most vehicles surpasses the performance requirements set by FMVSS No. 135. While the results of these tests might not show exactly how the braking systems will perform under automatic actuation that does not involve human muscular inputs, they do demonstrate that braking performance is more than sufficient to permit compliance with the final rule. Indeed, we do not need to rely on FMVSS No. 135 test data to demonstrate actuation performance because AEB systems currently on the road and tested by NHTSA actuate the service brakes without human driver inputs and demonstrate the performance needed to meet FMVSS No. 127. Therefore, we disagree with the Alliance's contention that the final rule misused the FMVSS No. 135 test results.

Toyota, Volkswagen, and the Alliance expressed concern regarding the practicability of high maximum test speeds and no contact. The Alliance stated that NHTSA's data illustrate the difficulties in complying with the decelerating lead vehicle test with both the lead and subject vehicles traveling at 50 mph (80 km/h) at any headway between 12 and 40 meters (S7.5.1(a), S7.5.2(b)(2), S7.5.3(a) and S7.5.3(d) of the final rule). To address this issue, the Alliance petitioned NHTSA to consider reducing the maximum test speed for the AEB and PAEB requirements and adjust the headway requirements. The Alliance claimed that the 2023 additional AEB research in the final rule evaluated only the test condition with a 12-meter headway and did not provide any test data to support the lead vehicle decelerating test with headways greater than 12 meters.

NHTSA is not reducing the maximum test speeds or adjusting the headway requirements for the test scenarios. Petitioners' requests for test speed reduction were addressed in the final rule, and headways above 12 meters are practicable.

Regarding test speeds, NHTSA's 2023 research showed multiple vehicles avoided contact on most tests regardless of scenario and test speed. 14 Further, one vehicle avoided contact on all lead vehicle AEB and PAEB tests except on three of the five lead vehicle decelerating tests, where it impacted the lead vehicle at approximately 5 km/h or less. 15 That vehicles not designed to meet the standard are already capable of doing so demonstrates that the performance test requirements are practicable.

Regarding headway for the lead vehicle decelerating test, the headway ranges selected are consistent with those used by Euro NCAP and NHTSA incorporated the test ranges for speed and headways to ensure AEB system robustness under a range of situations. NHTSA tested 2022 model year vehicles with headways of 40 m with and without manual brake application at 50 km/h and 80 km/h, and with a lead vehicle deceleration of 0.4 g and 0.5 g. 16 During that testing, multiple vehicles avoided contact in almost all lead vehicle decelerating test scenarios and one vehicle avoided contact in all scenarios. Additionally, the shorter headway tests are generally more stringent than tests with larger headways. In our 2023 testing, one vehicle tested by NHTSA avoided contact in the 80 km/h lead vehicle deceleration test in all trials with a 12 m headway, and another vehicle avoided contact on 2 out of 5 runs, 17 suggesting that avoiding contact under less stringent test conditions is practicable. Based on our test data, the requirements are practicable and will not be adjusted.

Petitioners requested reconsideration of the no contact requirement, stating that it could lead to unintended consequences such as increased false positives and a rise in rear-end collisions. A false positive describes AEB system brake applications in circumstances where there is no crash-imminent situation, such as braking in the absence of a true obstacle.

The Alliance stated that NHTSA has not adequately considered whether meeting the no-contact performance requirement will generate false positives and that NHTSA “should have attempted to quantify this risk” and assessed why those disbenefits are reasonable to accept. The Alliance suggested that a false positive in FMVSS-compliant AEB vehicles could induce rear-end collisions with vehicles that are not equipped with rule-compliant AEB systems. The Alliance's petition included simulation data indicating that a vehicle complying with the final rule must respond within 0.35 seconds to avoid contact in one of the obstructed pedestrian crossing situations, which it argues is beyond the reaction ability of human drivers that may be behind these vehicles. It claimed that this discrepancy will likely result in a rear-end crash. Furthermore, according to the Alliance, increases in relative speed may heighten the likelihood of false positives due to the need for earlier prediction and intervention. The Alliance stated that NHTSA acknowledged that false positives could generate problems with public acceptance of AEB technology. It also stated that NHTSA dismissed this concern in the final rule without demonstrating that the final rule's requirements will not significantly impact the rate of false positives, and without understanding that the final rule demands effectively different systems from those currently installed in vehicles. The Alliance did not suggest any specific alternative.

Toyota claimed that the requirements in the final rule will likely lead to an increase in false positives and can create driving behavior that neither the driver of the subject vehicle nor the drivers of surrounding vehicles will find natural or predictable, resulting in safety disbenefits. It stated that due to high maximum testable speeds, AEB will need to activate earlier to avoid a collision, and while a system can be designed to better account for curves in the road or parked cars, systems cannot be designed to predict what drivers in lead vehicles intend to do. Regarding PAEB, Volkswagen claimed that because pedestrians may change their travel path to avoid a collision themselves, AEB activations that initiate early to avoid a potential collision will result in rear end collisions with the stopping vehicle.

Petitioners' statements were largely speculative. In support of these arguments, they did not present any new data or analysis beyond what the agency had already considered. 18 Petitioners have failed to provide data demonstrating the likelihood of an increase in false positives or the magnitude of the increase, nor is NHTSA aware of any source of such data.

Under the Administrative Procedure Act (APA) and the Safety Act, NHTSA's obligation is not to eliminate uncertainty. Courts have repeatedly emphasized that the agency's job is to acknowledge uncertainty, explain the available evidence, and offer a “rational connection between the facts found and the choice made.”  19 In coming to its determination, NHTSA dealt with each of the principal uncertainties and resolved them to the degree possible. In some cases, the requisite decisions were necessarily based on imperfect data and were inherently judgmental or predictive in part. The obligation to make such decisions and resolve such uncertainties is an integral part of NHTSA's mandate under the Safety Act and the APA. Our determination under the Safety Act, which was based on several factors including the available test data, was that collision avoidance was practicable and that any risk of increased false positives and rear collisions did not outweigh the benefits of the rule. Therefore, considering the data available and applying our expert judgment about the unquantifiable aspects of the rule, we selected the option that best meets the need for safety.

NHTSA acknowledged the uncertainties and explained our reasoning throughout the rulemaking effort. In the FRIA, we noted that there is insufficient data to quantify the frequency and dynamics of false positive scenarios. 20 We explained that the analysis had limitations regarding crash scenarios and parameters beyond those reflected in testing. We recognized from our testing that performance is variable and false positives do occur on current systems. However, this uncertainty, on its own, does not demonstrate that false positives would become more frequent under the final rule.

We also explained that it is not possible to anticipate an exhaustive list of other possible real-world scenarios that systems would face and continually repeat testing to establish a robust estimate of the frequency of false positive occurrence. Based on this reasoning and test results, the analysis in the FRIA considered false positive rates to be the same under the final rule as they are in the current fleet. These false positives are therefore included in the analysis, but do not contribute to costs or benefits in the rule. The FRIA acknowledged that removing that assumption would reduce the magnitude of the estimated safety impacts. However, as the estimated benefits from the final rule are 17 to 21 times greater than the costs, it is unlikely that disbenefits from incremental false positives resulting in an increase in rear-end crashes would render the rule not cost-beneficial.

Despite these limitations, we nonetheless considered the problem qualitatively and addressed it to the extent possible. We emphasized that because market penetration of AEB is very high, incremental disbenefits resulting from all applicable vehicles having rule-compliant lead vehicle AEB would be insignificant. 21 We also emphasized our belief that false positives would not occur in well-designed AEB systems, especially with the integration of supplemental technologies. These technologies can include providing sufficient redundancy or continuously receiving and updating information regarding a vehicle or pedestrian as the vehicle approaches.

Additionally, we did not simply disregard risks of false activations due to the speculative nature of the risks. We incorporated two false positive testing scenarios to establish a minimum level of system functionality in avoiding such events. We noted that, while certainly not comprehensive, we selected these scenarios because we believe they represent the most common scenarios systems will encounter and they address known engineering challenges for existing AEB systems. 22

Furthermore, we also emphasized many possible benefits from the rule that the analysis also could not quantify. These include safety benefits associated with crash scenarios and parameters outside of those reflected in agency testing, safety benefits from avoiding secondary crashes, safety benefits from preventing or mitigating crashes with other vulnerable road users or animals, and property damage and traffic congestion avoided. 23

In contrast, the petitioners simply asserted speculative disbenefits based on theoretical scenarios. The Alliance, for example, presented simulation data to support the possibility of rear-end collisions that could occur if a vehicle has a false positive with a human driver behind it, but it did not provide any evidence that the false positive events themselves would occur in greater frequency or severity under the final rule compared to no requirement or an alternative requirement. 24 Additionally, Volkswagen asserts that “no contact” “will undoubtably lead to higher false positive rates” in scenarios in which a pedestrian changes their travel path following the onset of braking, and Toyota made a similar claim with regards to lead vehicle AEB. 25 When considering the balance of costs and benefits, petitioners seek to place greater weight on speculative and unquantifiable disbenefits without considering the added benefits which may also be obtained. These assertions are insufficient to demonstrate that the speculative disbenefits outweigh the benefits of a no contact requirement. Without sufficient information to fully quantify either, it is not unreasonable for NHTSA, in its expert judgment and in consideration of the Safety Act's focus on safety, to select the option that maximizes possible safety benefits.

The Alliance stated that it is insufficient for NHTSA to address false positives through the agency's safety defect authority. The Alliance stated that false positives are an unwanted side effect, similar to an issue experienced with early higher-powered airbag technology, which NHTSA needs to address through rulemaking to amend the performance requirements rather than through recalls. The Alliance argued that after the new FMVSS, “[i]t is not sufficient, or fair,” to continue to “address `false positives' through [NHTSA's] safety defect authority.” This argument primarily stemmed from the Alliance's claim that, due to current limitations in AEB technology, increasing the sensitivity of an AEB system to meet the performance requirements of the new FMVSS would increase the likelihood that the AEB system would also erroneously detect obstacles where none exist.

The Alliance's arguments do not support reconsideration of the final rule for several reasons.

First, the variability of false positive scenarios lends itself to the more individualized review of real-world operation that the defects process allows. As we noted, the final rule included two false activation test scenarios, but these are not comprehensive for eliminating susceptibility to false activations. 26 The best forum for such an individualized review is NHTSA's defects authority, which can accommodate investigations that consider the reasonableness of the potential safety risks in light of all of the facts and circumstances. In contrast, an FMVSS sets a static performance requirement for all systems. Therefore, the defects authority is an appropriate avenue for addressing false positive events.

Second, there is an established precedent of both NHTSA and manufacturers addressing false positive AEB events through safety recalls. In the past, vehicle manufacturers have filed recalls based on the safety risk that, for example, has been described as “[i]f the AEB system unexpectedly activates while driving, the risk of a rear-end collision from a following vehicle may increase.”  27 Likewise, NHTSA has undertaken multiple defect investigations of potential safety risks arising from false activations of AEB systems. 28 The public has similarly raised concerns about the safety risks associated with AEB false activations, requesting NHTSA apply its safety defect authority to the issue. 29 This established practice demonstrates that using the defects authority to address false positives has been effective and workable, and the Alliance does not explain why it will not continue to be under the final rule.

Third, the Alliance's petition suggests that current technical limits in AEB equipment, such as sensor range or definition, would make it unfair for NHTSA to act on safety risks that were a byproduct of manufacturer efforts to meet the performance requirements of the new FMVSS. However, in striving to protect the public, the Safety Act requires manufacturers to remedy all unreasonable safety risks in their vehicles, regardless of the reason for their origin. A manufacturer's good intention is not a defense to a recall. 30

Fourth, the false positive risks that petitioners raise are speculative. No petitioner or commenter has identified an aspect of the new FMVSS that will cause future defects related to false positives. At most, the Alliance has identified challenges with existing AEB technology that could lead some manufacturers to inadvertently be imprecise or overinclusive when calibrating the sensitivity of their AEB systems to meet the new FMVSS. The Alliance has not suggested that these errors in implementation would be impossible to eliminate or mitigate once they became apparent.

Finally, the Alliance's example of early, “high-powered” air bags is an inapt analogy. Early versions of air bags deployed with a fixed amount of force that posed a risk of injury to occupants. These risks were not an occasional byproduct of those air bags but were inherent to the forces generated when those air bags deployed as quickly as needed to meet the performance requirements of the original air bag FMVSS. As air bag technology improved, air bags became capable of modulating the force of their deployment to limit the injurious potential of their inflation. When updating the FMVSS to require advanced air bags, NHTSA noted that “the fact that we are requiring manufacturers to provide improved air bags in new vehicles does not mean that earlier vehicles that do not meet the new requirements have a safety-related defect.”  31 By contrast, an AEB false positive (such as braking in the absence of a true obstacle) is not a behavior required by the final rule. Rather, it is at most an accidental engineering failure from trying to design an AEB system with sufficient sensitivity to meet the performance standard. In fact, AEB false positives are more like the safety defects posed by air bag inflator ruptures. These occur when, in an effort to design air bag systems capable of meeting the intense inflation demands of the FMVSS, engineering failures cause ruptures which project debris. In the same way, even assuming the Alliance is correct that the performance demands of the final rule may sometimes result in faulty AEB system designs that are susceptible to false positives, those false positives are a failure in the implementation of the AEB system, not an inherent performance characteristic of the standard.

For these reasons, no reconsideration is needed on this issue.

To address false positive risks and practicability concerns, Volkswagen and Toyota petitioned for the consideration of allowing a low-speed contact, such as up to 10 km/h (6.2 mph). 32 They present two justifications. First, they make a novel assertion, not raised during the NPRM comment period, that NHTSA implicitly accepts contacts under 10 km/h because the final rule does not require AEB systems to operate at speeds 10 km/h and below. Second, Toyota claims that NHTSA's analysis did not establish how no contact meets the need for safety in comparison to low-speed contact alternatives. 33

Petitioners' arguments do not support reconsideration of the final rule. As an initial matter, NHTSA's analysis fully considered this issue and the relevant alternatives in the rulemaking. In the NPRM, we sought comment on alternatives to the no contact requirement, specifically regarding allowing low-speed contact in on-track testing for both PAEB and lead vehicle. We received extensive comment both in support of and against allowing contact at low speeds. In the final rule, the agency disagreed that a low-speed approach fully resolved the safety problem, emphasizing that no contact provides maximum safety benefits and aligns with the Safety Act. We reiterated that striking a person with a vehicle is unacceptable at any speed under any conditions, and the analysis in our FRIA supports that conclusion. We believe the data and analysis in the final rule and the FRIA demonstrate the safety basis upon which “no contact” was selected over low-speed alternatives. Therefore, we are not amending the final rule on these bases. However, as petitioners have presented a new framing of the argument regarding the 10 km/h (6.2 mph) activation threshold, we take this opportunity to highlight the data and analysis that supports the final rule to respond to the points raised by petitioners.

Petitioners present a false equivalency between the activation threshold and contact speeds. Activation of an AEB system while moving below 10 km/h is a different scenario from continuing to move at up to 10 km/h after an activation has already occurred. The impact speed is part of the in-operation performance of the system. That is, once an AEB system detects an imminent collision with a vehicle or pedestrian, we anticipate that the systems will remain active as long as the imminent collision risk persists. The AEB minimum activation speed, on the other hand, is selected as a design specification. Petitioners attempted to conflate these circumstances, which is unpersuasive.

Additionally, the activation threshold exists to ensure practicability, not because no safety concerns exist below that speed. 34 When discussing PAEB testing in the NPRM, for example, we noted that the lower bound was chosen based on a tentative conclusion, corroborated by our 2020 testing and testing on vehicles from model years 2021 and 2022, that PAEB systems may not offer consistent performance at speeds below 16 km/h (9.9 mph) and that 10 km/h (6.2 mph) is consistent with Euro NCAP's testing lower bound.

In addition to those stated in prior notices, there are several other reasons for the practicability concerns that justify a distinction between 10 km/h as an activation threshold and as a maximum contact speed in testing. First, at speeds below 10 km/h, the driver has more time to re-engage and apply the brakes to avoid the collision without AEB intervention. Second, AEB systems can have difficulty operating in very tight spaces and at low speeds such as in crowded parking garages, where manoeuvres at low speed may need to occur in crash-imminent scenarios. Third, certain vehicles to which the regulation applies may need to push objects while operating at low speeds. Finally, our testing and data collection showed both that no systems operated at speeds under 5 km/h (3.1 mph), and that some vehicles that performed well in high-speed testing did not operate under 10 km/h (6.2 mph). 35 These data suggest design challenges specific to low-speed operation. NHTSA considered these factors and determined that it was practicable to require only that systems operate above 10 km/h. Therefore, the activation threshold and whether to allow an impact speed have distinct considerations that justify different approaches.

Furthermore, no contact better meets the need for safety in comparison to a regulation that allows low-speed contact. The data and analysis in the FRIA show that allowing for contact, at any speed, results in less safety benefits than are achieved by the final rule. In analyzing the capabilities of AEB technology, at least one vehicle tested was able to meet the no contact requirement in each scenario. Therefore, the benefits in the FRIA represent the level of safety associated with the best performer. 36 The injury risk curves in the FRIA represent the likelihood of injury based on impact speed. In general, the likelihood of injury, and more severe injuries or fatalities, increases with respect to contact speed. And, although there are limits to the precision of the conclusion that can be drawn due to data limitations, the injury risk curves show that allowing for contact at any speed results in less safety benefits than are achieved by the best performer. NHTSA's analysis therefore fully considered this issue.

The PAEB data clearly show that a low-speed contact alternative would achieve substantially less safety than no contact. 37 Even at the lowest impact speeds of 0-5 mph, there is a 75 percent chance of minor injury, 4 percent chance of a moderate severity injury, and a 1 percent chance serious injury or worse. Furthermore, at even the next impact speed group, there is a non-zero probability of a fatality. 38 NHTSA considered these risks in deciding that no contact in PAEB testing meets the need for safety.

By applying these percentages to the PAEB data across the injury severity categories in the estimated benefits of the final rule, we find significant benefits to a no contact standard. 39 Allowing contact at low speeds would lead to 2,192 additional minor injuries, 31 moderate injuries, 3 serious injuries, and 1 fatality annually. Monetized, this change results in $179.1 million comprehensive economic benefits lost, or 4.9 percent of the PAEB benefits generated by the final rule. 40 This is a sizable impact, and one that NHTSA considers meaningful. Indeed, $179.1 million of comprehensive economic benefits is larger than those of many entire safety rules we issue.

For lead vehicle AEB, the low-speed injury data in the FRIA has more limitations than that for PAEB. The relatively small number of severe injuries that occur in rear-end collisions at low speeds compared to those that occur in high speed collisions causes implausible analytical results that limit the precision of the conclusions that can be drawn about the exact level of safety benefit obtained at low impact speeds. Nonetheless, the available data demonstrate that benefits would be lost with a contact standard and the general magnitude of those lost benefits.

The injury data in the FRIA show that allowing contact at any speed reduces the safety benefits. 41 At a relative contact speed of 10 mph (the difference between striking vehicle speed and struck vehicle speed), the probability of minor injury increases to 21.9 percent, moderate injuries to 0.9 percent, serious injuries to 0.7 percent, and even 0.1 percent chance of a fatality. In fact, even at a relative contact speed of just 1 mph (contact at 2 mph), there is a 3.5 percent chance of minor injury and a 0.4 percent chance each of moderate and serious injuries. The FRIA contains an example calculation to show how these figures are derived and factor into NHTSA's benefits analysis. 42

The data and analysis in the FRIA show that while low-speed collisions are less likely to result in severe or fatal injuries, reducing the number of injuries that are less severe can carry large safety benefits due to the large volume of those injuries. As the final rule states, between 2016 and 2019, there were an average of 1.75 million rear-end crashes annually (and nearly 55,000 frontal crashes with a pedestrian). Even small changes in injury risk can have sizable impacts across that volume of collisions. 43 Additionally, even injuries classified as less severe in the data cause serious harm, and these injuries, such as whiplash, can carry long-term effects. In the final rule, the agency concluded that although the data is limited, it plainly indicates that a no contact standard achieves greater safety benefits than a standard that allows contact.

In contrast to the data collection and analyses done by NHTSA, petitioners suggest that NHTSA should prioritize speculative disbenefits from false positives over the demonstrable safety benefits that a no contact requirement achieves. Petitioners did not provide any new information or data that was not already considered by the agency during the development of the final rule in response to public comments suggesting that a low-speed alternative would better meet the need for safety. Nor did they provide, at any stage in the rulemaking, compelling information regarding the increase in false positives that they fear or evidence that a no contact requirement will result in such an increase while allowing a 10 km/h (6.2 mph) contact speed would not. Although we recognized that there are unquantifiable aspects, NHTSA was well within its responsibilities to consider this risk but to weight more heavily the demonstrable safety benefits achievable by a no contact requirement. The Safety Act entrusts NHTSA with this responsibility and to exercise its judgment, and we did so. Therefore, no reconsideration is necessary, and we deny the request for reconsideration to allow low-speed contact.

The final rule requires that the test vehicle meet the performance test requirements in any test run and does not allow multiple test runs in which the vehicle is only required to meet the required performance in a percentage of the runs. Petitioners requested that the standard be amended to incorporate multiple test runs to allow a vehicle to meet the performance requirement in some but not all runs, and provided several reasons discussed below.

Petitioners argued that the final rule did not account for the variabilities in testing. They requested FMVSS No. 127 be amended to be similar to FMVSS No. 135, which allows for compliance to be determined based on multiple test runs. Petitioners suggested several variations, including passing 5 out of 7 runs (which is similar to NCAP), passing 3 out of 5 runs, and a requirement that if the vehicle fails the first run it must pass three subsequent runs. 44

The Alliance stated that existing braking standards, specifically FMVSS No. 135, acknowledge the inherent variability in vehicle braking systems that make it unreasonable to evaluate performance based on a single test run. The Alliance suggested that since AEB is a braking system, it has these variations, which raise practicability concerns when a test requirement does not allow for multiple test trials. These variations derive from both foundational braking mechanisms and additional variability from sensing and perception responses. Therefore, the Alliance argued that NHTSA failed to recognize that FMVSS No. 127 deviates from its established practice of permitting multiple test runs for braking standards. Moreover, it claims that NHTSA did not provide any explanation in the final rule for departing from this longstanding precedent.

NHTSA received comment on and fully considered the issue of multiple trials during the rulemaking. The arguments raised in the petitions do not justify allowing multiple test trials.

That multiple test runs are used in FMVSS No. 135 does not mean that multiple test runs are necessary for FMSS No. 127. There is a critical difference between FMVSS No. 135 and FMVSS No. 127 that justifies a different approach. 45 The purpose of FMVSS No. 135 is to ensure safe braking performance, and its testing is designed to test braking performance of the vehicle. 46 It uses multiple test runs to account for the variability in the ability of the human test driver to maximize the braking capabilities of the vehicle. The agency published the first NPRM for what would become FMVSS No. 135 in 1985. In that NPRM, the agency stated that “[t]he purpose of specifying multiple stops is to enable test drivers to achieve a vehicle's best performance.”  47 That preamble further stated that it normally took test drivers three or four stops to achieve the best possible braking performance. NHTSA has also rejected incorporation of multiple test runs into the standard for the “hot stop” test because NHTSA found in its testing that the human test drivers were capable of achieving the needed performance for the test, and the test needed to occur while the brakes were at temperature. 48 Additionally, in FMVSS No. 126, an example of a standard where NHTSA found a single test run to be sufficient, the sine-with-dwell test provides for only one test run at each steering-wheel amplitude and rotation direction combination. Further, in the final rule establishing FMVSS No. 136, “Electronic stability control systems for heavy vehicles,” NHTSA stated that FMVSS No. 136 allows multiple attempts to maintain the lane for J-turn testing to ensure that the ESC system activates before the vehicle becomes unstable instead of imposing a requirement that it activate prior to instability to “account for driver variability and possible driver error in conducting the manoeuvre. Absent driver error, we do not expect any vehicle equipped with current-generation ESC systems to leave the lane during any J-turn test.”  49 These examples make clear that a standard that permits multiple test trials is justified where testing may be affected by variability in a human test driver's ability to apply a full brake application. It may be the case that, because it allows multiple test trials to accommodate human test drivers, FMVSS No. 135 accommodates the other forms of test variability cited by petitioners. However, this result is an ancillary effect of the standard's design, not its purpose.

In contrast to FMVSS No. 135, the test procedures in FMVSS No. 127 test the AEB system and do not use human test drivers to actuate the brakes. Even for tests that include manual brake application, the test procedure specifies use of a braking robot and the performance specifications on how the brake must be actuated for the test. No variability from human operation contributes to test outcomes in FMVSS No. 127.

Indeed, the Alliance, in attempting to argue that FMVSS No. 135 test results are not informative of AEB system performance, acknowledged this distinction is meaningful. It claimed that test conditions in FMVSS No.'s 135 and 127 “are fundamentally different such that FMVSS No. 135 results are not indicative of AEB performance” because tests conducted under FMVSS No. 135 are “conducted with a human driver putting muscular effort into the brake pedal.”  50 This distinction justifies NHTSA's decision not to use multiple test runs.

Petitioners cited several forms of variability that they argue justify multiple test runs or render the standard impracticably stringent. The Alliance, for example, cited wear and tear of pedestrian test dummies, design of pedestrian test dummies, and headlamp aim as aspects specific to AEB system performance that can impact testing. It also emphasized track conditions that contribute to stopping distance variability, such as the age and degradation of the asphalt since it was last resurfaced, the type of aggregate used on the test track, and other variables. The Alliance also noted that compliance tests are conducted at any number of test tracks throughout the United States, which the Alliance claimed further amplifies variability of the test by contributing their own unique characteristics. It also noted ambient environmental effects such as cloud cover (or intermittent cloud cover), dust, debris, pollen effects, recent rainfall, and noise factors. It also stated that the road surface friction decreases as the road surface temperature increases, and provided a figure that shows road surface friction around 0.98 at a temperature of 2 degrees C and decreasing to around 0.92 at 50 degrees C, and that these variations in ambient conditions can translate into about 8-10 feet (2.5-3m) or more variation in absolute stopping distance on a given test surface. It also raised vehicle conditions, such as tire burnish, brake burnish, brake wear and brake bleed, which amplify these environmental effects. The Alliance stated that these factors (ambient conditions, vehicle conditions, and track conditions) support the reason why FMVSS No. 135 accommodates outcome variability by using multiple trials, justify using multiple trials, or justify a change in the no contact requirement.

The Alliance stated that NHTSA's data demonstrate the challenges of avoiding contact in every test that result from their cited variability. The Alliance emphasized that no test scenario showed that all tested vehicles could meet the performance requirements for lead vehicle AEB on every test run. Starting at 64 km/h (40 mph), fewer than half of the tested vehicle met the performance requirements in all the test trials. The Alliance further stated that, while the research conducted tests only up to 72 km/h (45 mph), at which only two models avoided contact, the standard requires compliance with lead vehicle AEB test at speeds up to 100 km/h (62 mph) without demonstrating the feasibility and practicability at those higher speeds. It also referenced PAEB testing, for which at the lowest tested speed (16 km/h (9.9 mph)), vehicles failed in over 25 percent of the test runs. At speeds of 65 km/h (40.4 mph) in dark conditions, the Alliance stated that no tested vehicle could comply with the requirements 100 percent of the time. The Alliance reasoned, therefore, that NHTSA's test data indicates that most vehicles do not meet the standard's requirements, and the agency has not provided any analysis demonstrating why these data or other information prove the practicability of avoiding contact on every test run.

NHTSA disagrees that the types of variability raised by petitioners make the rule impracticable or justify multiple test runs.

First, several of these types of variability would not be resolved if FMVSS No. 127 allowed multiple test runs. For example, test track conditions, headlamp aim, and the differences between the pedestrian test device and real pedestrians, which do contribute to variability in AEB system performance, do not contribute to variability in performance across multiple test runs in the same place with the same test devices. The test track is relatively consistent across runs. Differences in the pedestrian test device and a real pedestrian may contribute to variable performance between the real world and the test track, but it does not contribute to variability across multiple runs with the same test device. Therefore, allowing multiple runs would not resolve these concerns.

Additionally, other variabilities raised by petitioners are resolved by other aspects of the FMVSS. The test conditions, including temperature range, are generally consistent with those of existing FMVSSs, such as FMVSS No. 135, which have proven effective over time in resolving many issues raised by petitioners, such as concerns with thermal effects on the surface friction of the test track. Additionally, the test procedures state that headlamps will be aimed per manufacturers' instructions and that testing will not occur during periods of precipitation or when visibility is affected by fog, smoke, ash, or particulates, which resolves many concerns regarding AEB system performance variability. 51 The Alliance's concerns about the test dummies are also unfounded. Dummy wear and tear will not contribute to test performance variability because the test procedures specify the conditions for the test devices used.

The Alliance's discussion regarding vehicle and test track variability is not persuasive because it relies on studies conducted with test vehicles not specifically designed to meet the requirements of the final rule. We anticipate the variability between vehicles designed to comply with an FMVSS will be relatively small and will depend on the compliance margins set by manufacturers according to their risk acceptance strategies.

Regarding petitioners' claims that the current state of AEB technology means that multiple test runs are necessary for the standard to be practicable, we note that in the agency's 2023 research one tested vehicle was able to avoid contact on most runs, which marked significant progress compared to the 2020 testing. This and other improvements in AEB technology over time support the conclusions made in the final rule that these requirements are practicable within the allowed lead time. Under the Safety Act, the agency is empowered to issue safety standards that require advancements in existing technology or require development of new technology. 52 Given the developmental trajectory, the agency does not find arguments based around the performance of existing AEB systems to be a persuasive argument for multiple trials.

The Alliance stated that the final rule claimed that multiple trials are not necessary for mature systems. It argued that NHTSA incorrectly assumed that AEB technologies are mature, in part because AEB systems introduced under the 2016 voluntary commitment were not designed to meet the performance requirements of the final rule. The Alliance also referenced the FRIA—which stated that because many AEB systems do not meet the rule's requirements there will be significant benefits to the new rule-compliant AEB systems—to argue that the agency cannot consider an existing AEB system installed under the 2016 commitment to be mature while simultaneously claiming significant benefits from the new systems required by the final rule. The Alliance also stated that rule-compliant AEB systems should be considered new or in development. It concluded that therefore these systems are not mature and should be allowed to demonstrate compliance through multiple test trials.

NHTSA is unpersuaded by the Alliance's reframing of the issue. The fact that a current system can meet the requirements of the standard shows that the technology is mature—vehicles on the road today have the requisite technology to comply with the rule. The benefits estimates assess the improvements in outcomes generated when the entire fleet becomes compliant in comparison to the status quo baseline. As we explained in the FRIA, the status quo baseline is the average performance of the vehicles included in NHTSA's testing. Therefore, the benefits claimed are representative of mature systems being required throughout the fleet.

Therefore, no reconsideration is needed. NHTSA denies the petitions for reconsideration regarding multiple trials and will not adjust the final rule to incorporate multiple test trials.

The final rule includes an equipment requirement that light vehicles have an AEB system that applies the brakes automatically at any forward speed that is greater than 10 km/h (6.2 mph) and less than 145 km/h (90.1 mph) when a collision with a lead vehicle is imminent, and at any forward speed greater than 10 km/h (6.2 mph) and less than 73 km/h (45.3 mph) when a collision with a pedestrian is imminent. It also includes a performance test requirement that, when tested according to the procedures in the rule, the subject vehicle provides a forward collision warning and subsequently applies the service brakes automatically when a collision with a lead vehicle is imminent such that the subject vehicle does not collide with the lead vehicle.

The Alliance stated that the final rule lacks objectivity because NHTSA has not established performance requirements for the equipment required by final rule. It notes that while the rule requires the lead vehicle AEB and PAEB systems to operate at speeds up to 145 km/h (90.1 mph) and 73 km/h (45.3 mph) respectively, it does not define the term “operate,” Additionally, the Alliance argues, although the preamble to the final rule indicated that the systems would apply brakes when a collision is imminent, NHTSA did not define an imminent crash. To address these concerns, the Alliance requested a supplemental notice of proposed rulemaking (SNPRM) proposing objective performance requirements, including specifying what it means to “operate” the equipment and defining when a crash is “imminent.”

NHTSA is not incorporating definitions for “operate” or “imminent” and is not incorporating a test procedure. However, NHTSA is making one clarifying edit to remove reference to “imminent” in the performance test requirement for lead vehicle AEB.

NHTSA does not believe that it is necessary to provide a definition of or test procedures for the term “operate” in the regulatory text because the final rule's definition of AEB clarifies how an AEB system operates. FMVSS No. 127 defines “Automatic Emergency Braking” as “a system that detects an imminent collision with vehicles, objects, and road users in or near the path of a vehicle and automatically controls the vehicle's service brakes to avoid or mitigate the collision.” The definition of FCW provides similar clarity regarding FCW operation. Additionally, the requirement that these systems “operate” is explicitly tied to the test conditions in S6, Test Conditions, of FMVSS No. 127. In considering the meaning of “operate” in the context of the performance requirements applicable to AEB systems, the final rule provides sufficient clarity that manufacturers can certify with reasonable care that their systems “operate” in the circumstances required by the final rule. Therefore, no definition is needed.

Regarding the definition of “imminent” as used in the equipment requirements, no regulatory definition is needed. Certainly, not all of the terms in a regulation must be explicitly defined. Here, the term “imminent” comes from the regulatory mandate in BIL. 53 In BIL, Congress chose not to define the term, and we interpret this provision of BIL to use the plain meaning of the word “imminent.”  54 Manufacturers may refer to the plain meaning when certifying their vehicles to the equipment requirements. 55 Additionally, the term is sufficiently clear in context, and its meaning is discernable from close review of the performance requirements and test procedures in the rule, such as the set of testable ranges specified.

However, we are making a clarifying change to the performance test requirement. In its petition, the Alliance appears to conflate equipment requirements and performance requirements. The final rule and NPRM distinguished between them and explained how the equipment requirement supplements the performance requirement. 56 The equipment requirement, explicitly mandated in BIL, does not have an associated performance test and compliance with it is not evaluated based on performance testing. On the other hand, compliance with the performance requirements is evaluated through the performance testing laid out in the final rule. Critically, these tests do not evaluate the activation timing of the AEB or FCW systems (other than that FCW should not activate after AEB). Rather, the performance criterion is contact with the test device (for AEB) and whether FCW activated. We therefore left to manufacturers the discretion to determine when to apply the brakes and provide the FCW, so long as their determination is not clearly erroneous.

To resolve any confusion, we are amending the performance test requirement for lead vehicle AEB in S5.1.3 to remove the phrase “when a collision with a lead vehicle is imminent.” The purpose of this change is to clarify the distinction between the performance requirements and equipment requirements in FMVSS No. 127 and does not substantively alter the requirements as described in the preamble. In fact, because NHTSA's testing will not evaluate AEB and FCW timing, and the test scenarios themselves create crash-imminent scenarios, this language was superfluous in the performance test requirement. This change also aligns the text of S5.1.3 with the performance test criteria for PAEB (S5.2.3), which does not contain that phrase. Although the preamble of the final rule explained this approach, the change discussed here makes it clear in the regulatory text. Finally, following the change, the term “imminent” only remains in the equipment requirement. Therefore, no performance test procedure is needed to evaluate compliance.

Therefore, we are amending FMVSS No. 127 to resolve confusion in the requirements. However, we are denying the petitions for reconsideration regarding issuing an SNPRM to establish a test procedure for equipment requirements or providing a definition for “operate” and “imminent.”

The final rule does not explicitly place a limit on the amount of pretest driving a vehicle may undergo and it does not place a maximum limit on the number of test runs a vehicle may be put through. 57

The Alliance requested reconsideration, arguing that unlimited pretest driving of a subject vehicle is inconsistent with repeatable, objective test procedures. It also argued that the agency could accrue thousands of miles on the test vehicle, degrading the tires and other wear components, before running the compliance test. Petitioners expressed concern that manufacturers would have no way to predict what the agency's pretest driving scenarios will do to the subject vehicle, making it impossible to certify compliance. Similarly, it stated that, under the test procedures as written, a vehicle can be tested unlimited times until one failed test trial occurs, in which case the vehicle would be non-compliant.

NHTSA is not granting reconsideration on this issue for two reasons. First, the purpose of FMVSS No. 127 testing is not to be an endurance or durability test, but a test of as-new hardware. This purpose is apparent in the structure of the rule compared with several other FMVSSs. When there are endurance and/or wear requirements in the FMVSSs, these requirements are apparent ( i.e., they are titled “durability” or “endurance” tests) or are specifically written to indicate minimum required durability limits. 58 For example, FMVSS No. 106 contains a water absorption and whip resistance requirement, which identifies both the length of time the hose sample will be submerged under water, and how long the hose sample will be flexed. 59 There are numerous other examples in FMVSS No. 106 and other FMVSSs of this style of endurance testing that establishes a minimum durability performance. FMVSS No. 127 contains no such provisions. It was not written to, and is not intended to, set endurance or wear limits on the base equipment making up the AEB system. Instead, FMVSS No. 127 is intended to ensure a minimum level of performance of AEB systems. The only expected wear on the components is what is necessary for establishing a repeatable test, which is specified in the test procedures ( i.e., brake burnishing). In the event that wear and tear result in an apparent non-compliance during agency testing, the agency would not consider these tests valid. The Agency has demonstrated, through decades of testing, the competency to determine if wear is the source of an apparent non-compliance, be it by conducting additional testing, disassembly and visual inspection, and other similar methods. Finally, any specific limits on preconditioning driving time or test runs would be arbitrary. Therefore, given that that FMVSS No. 127 does not establish an endurance or durability test, NHTSA determined it is not necessary to specify such limits.

Second, manufacturers misunderstand the purpose of the pretest conditioning language. The initial conditions contained in S6, S7, S8, and S9, are written to prevent designing the AEB system to sense specific pre-conditions of the test. They are not intended to enable the agency to conduct durability testing. For instance, petitioners expressed concern that the standard states that the agency will drive the vehicle in any direction for any amount of time prior to the start of the test. However, additional conditions listed in S6 state that consumable fluids (including fuel), or battery charge for electric vehicles, will be between 5 and 100 percent. Additionally, the initialization conditions state that the vehicle will be driven at a speed of 10 km/h or higher for at least one minute prior to testing and subsequently the starting system is not cycled off prior to testing. Because the starting system is cycled off during fuelling, these conditions provide a practical and realistic limit on the amount of time the agency can drive the vehicle during preconditioning prior to any single test. Therefore, petitioners' concerns regarding “unlimited pretest driving” are misplaced.

As such, reconsideration is unnecessary to resolve petitioners' concerns. Therefore, NHTSA declines to amend the final rule on this issue.

The final rule requires that vehicles must detect AEB system malfunctions and notify the driver of any malfunction that causes the AEB system not to meet the minimum proposed performance requirements.

The Alliance and Volkswagen stated that the requirement that the malfunction indicator lamp (MIL) illuminate under all malfunction conditions, including sensor degradation, and under all possible conditions of “adjustments in performance” lacks objectivity and practicability. The Alliance petitioned NHTSA to issue an SNPRM that would define each malfunction requiring MIL illumination and include an associated test procedure. It did not provide any additional data or analysis beyond what has already been considered in comments to the NPRM.

The Alliance noted that while the requirement for activating a MIL in the event of a malfunction in an AEB system is consistent with other FMVSSs, the final rule neither explicitly defines malfunction nor provides the associated test procedures. Several petitioners requested an objective definition of “malfunction.” The Alliance pointed out that FMVSS No. 135 specifies conditions for MIL activation, and FMVSS No. 138 provides malfunction conditions and test procedure for the tire pressure monitoring system. In contrast, it stated, “malfunction” in FMVSS No. 127 is not defined and could include sensor degradation, which exceeds typical MIL illumination requirements in the FMVSSs. It stated that without a clear definition, manufacturers may determine a malfunction at their discretion and adjust AEB performance to any performance level, including complete deactivation, that does not meet the requirements of the final rule. The Alliance stated that if its interpretation is correct, the standard should clearly specify the allowance to adjust AEB systems, including complete deactivation, during a defined malfunction state.

Additionally, the Alliance stated that NHTSA did not establish an objective test procedure for automatically detecting system changes that may affect AEB performance. The Alliance stated that the requirement to detect vehicle owner's modifications that could render the AEB system non-compliant is boundless and lacks specific, objective performance criteria and test procedures, unlike other FMVSSs. For example, FMVSS No. 138 provides specific test procedures where the MIL must illuminate when an incompatible tire is installed. In contrast, the final rule does not limit or specify the types of owner modifications that may trigger MIL illumination, making it unreasonable to expect manufacturers to anticipate and develop detection strategies for every possible modification scenario. It stated that, as a result, the MIL requirement is not objective.

Toyota petitioned for reconsideration of MIL requirements and incorporated the Alliance's petition into its own. Additionally, Toyota provided a description of its understanding of the malfunction requirements. It read the requirements to allow discretion to the manufacturer to design a malfunction detection feature—including what elements to monitor and what is considered a malfunction. It also stated that if a malfunction is identified, the standard permits the manufacturer, at its discretion, to adjust the performance of the vehicle such that it will not meet the requirements specified in paragraphs S5.1, S5.2, or S5.3, including completely deactivating the AEB system, and illuminate the telltale. It said it understood the agency's intent to be that manufacturers must design vehicles with a malfunction detection feature, and that the vehicle must display a telltale when a malfunction is detected and allow the vehicle to adjust the performance of the AEB system or deactivate it in response to malfunctions.

Toyota agreed with NHTSA that malfunctions should be detected based on the system design. Toyota argued that if the AEB system cannot be deactivated in cases of performance degradation, such as from sensor misalignment, it could result in false-positive activations potentially creating safety disbenefits. However, it nonetheless argued that the malfunction detection requirements are unclear and requested reconsideration. It noted that NHTSA had rejected suggested language from Bosch regarding malfunction detection on the basis that it was not workable for an FMVSS and lacked objectivity.

NHTSA will not adjust the malfunction detection requirements. NHTSA considered comments on malfunction detection in the final rule. Petitioners broadly expressed confusion about the term “malfunction” and about what conditions the indicator lamp must illuminate. However, Toyota, in its petition, correctly summarized the requirements, indicating that it understood the requirement as written. Nonetheless, we respond to certain issues raised in the petitions to clarify our intent.

Toyota is correct that, when a malfunction is detected, the system is permitted to reduce functionality and it must show the telltale. The intent behind the requirement is for systems to self-diagnose issues that cause them to perform at a level below that required by the FMVSS, adjust performance as the system determines is appropriate, and alert the operator. In contrast to how petitioners describe the requirement, the standard does not require AEB systems to detect all possible conditions (or owner modifications) that could reduce functionality. Rather it requires the system to be able to make detections regarding malfunctions and conditions that cause performance degradations, allows the system to adjust performance if it makes such a detection, and requires the system to alert the operator if such an adjustment is made.

As is customary with NHTSA's standards, the laboratory compliance test procedures will specify how NHTSA intends to run its compliance test regarding illumination of a malfunction telltale. However, NHTSA is not specifying these in the regulation. The conditions under which the malfunction lamp are required to illuminate are sufficiently defined in the FMVSS, which is enough information for manufacturers to certify to the requirement. Although NHTSA is also not specifying in the regulatory text how an internal malfunction is generated, test procedures for MIL requirements typically involve creating an obvious failure condition, such as disconnecting the power source to the system, and determining if the MIL illuminates.

NHTSA will not specify instances of “malfunction.” NHTSA received and fully considered comment on this issue. The range of possible malfunctions is sufficiently broad that such an approach would be unlikely to meet the need for safety because it would omit many possible malfunctions from the MIL requirement. As Toyota stated, what constitutes a malfunction is specific to the design of each AEB system, and manufacturers are best positioned to determine when a circumstance exists that causes performance to be impeded.

Furthermore, petitioners are incorrect when they state that the MIL requirement is not objective or practicable because the term “malfunction” is not given a regulatory definition. The MIL requirement in FMVSS No. 127 is stated in objective terms. It ties the requirement to illuminate the MIL upon performance adjustment to the performance requirements for AEB systems. These performance requirements are stated in objective terms. The MIL requirement is therefore also stated in objective terms.

Finally, the Alliance attempts to reference the MIL requirement in FMVSS No. 138 as a contrasting example of a MIL requirement that is objective. However, FMVSS No. 138, like FMVSS No. 127, does not provide an explicit definition of “malfunction,” instead applying the performance requirement “to a malfunction that affects the generation or transmission of control or response signals.”  60 The approach undertaken in FMVSS No. 127 is analogous: it specifies the AEB system performance requirements, stated in objective terms, as the relevant comparison. Therefore, no reconsideration is necessary. NHTSA is denying the petitions for reconsideration on this issue and is not changing the MIL requirements from those stated in FMVSS No. 127.

The final rule includes an explicit prohibition against manufacturers installing a control designed for the sole purpose of deactivation of the AEB system, except in certain cases relating to law enforcement. The final rule does, however, allow for controls that have the ancillary effect of deactivating the AEB system, such as during low-range four-wheel drive configurations, when the driver selects “tow mode,” or when another vehicle system is activated that will have a negative ancillary impact on AEB operation. It also allows for automatic deactivation in the malfunction circumstances described in the previous section.

The Alliance and Volkswagen petitioned NHTSA to allow manual deactivation of the AEB system. Petitioners pointed out scenarios in which they state that AEB operation can be inappropriate or potentially hazardous. These include racetrack usage, off-road driving that requires manoeuvring around obstacles, off-road driving without low range or gear options, road infrastructure causing false positives, support vehicles for cycling races, and similar situations or dynamic driving events involving interactions with other vehicles. The Alliance also raised several scenarios where vehicles are used on public roads but under non-normal conditions, such as during parades, car shows, or sport events where vehicles are operated in close proximity to pedestrians and other vehicles. Petitioners stated that the automatic deactivation provision is inadequate to address these scenarios. The Alliance noted that, since AEB systems might not automatically differentiate between tracks or parking lots and public roads, they could potentially intervene during dynamic driving manoeuvres, disrupting the driver and posing a risk to nearby vehicles. Moreover, the Alliance noted concerns about the “automatic deactivation only” approach for installed equipment, using snowplows as an example, stating that the final rule does not cover all potentially unsafe scenarios. For instance, installing equipment like a roof-mounted kayak, canoe, or ski rack with parts overhanging the front windshield could cause sensors to detect shapes that might not lead to a malfunction but could inadvertently trigger AEB operation. Thus, it requested that drivers have the ability to disable AEB systems to resolve these circumstances.

The Alliance also requested expansion of the language in S5.4.3 of the final rule, which applies only to vehicles operating in a low-range four-wheel drive configuration, to include certain modern vehicle configurations, like those with all-wheel drive system without a transfer case or electrical vehicles using only electric motors or a combination of combustion-driven axles and electric motors, which may not have a low-range system but are still capable of off-road operations. Thus, the Alliance argued, NHTSA should broaden the applicability of S5.4.3 to include vehicles operating in any off-road mode or mode designated to the driver as appropriate for low-speed off-road operations.

NHTSA will not adjust the requirements regarding deactivation. NHTSA received and considered comments on automatic and manual deactivation of AEB systems. After consideration of those comments, NHTSA determined that allowing automatic deactivation pursuant to the circumstances in S5.4.2.2 would be practicable and most effectively meet the need for safety because it allows for controls that have the ancillary effect of deactivating the AEB while preventing installation of a control with the sole purpose of enabling driver disablement of AEB systems. NHTSA believes that the current regulatory text, which allows AEB deactivation “when another vehicle system is activated that will have a negative ancillary impact on AEB operation,” is sufficiently broad to encompass the vehicle types that the Alliance raises. Furthermore, the purpose of S5.4.3 is to exempt vehicles that have four-wheel drive modes, selected by mechanical controls that cannot be automatically reset electrically, from the requirement that any AEB deactivation be reset by the ignition cycle. For other vehicles (such as those with all-wheel drive), the agency expects that AEB will reactivate when the vehicle is in a drive mode that allows for AEB activation, and when the vehicle's ignition/power is cycled on/off.

Petitioners' stated concerns about operation of vehicles with no manual AEB deactivation in unusual circumstances do not justify reconsideration. As we discussed in the final rule regarding front-mounted equipment, a well-designed AEB system will be able to detect and automatically deactivate to accommodate roof-mounted equipment such as kayaks or ski racks that may overhang the front windshield. We are also unpersuaded by requests that the final rule allow manual deactivation to account for various racing or track scenarios. The allowance in S5.4.2.2 provides relief for some of these vehicles. Additionally, our requirements apply to motor vehicles, which the Safety Act defines as a vehicle “manufactured primarily for use on public streets, roads, and highways.”  61 Therefore, if a manufacturer chooses to produce a racing vehicle designed for use on public roads it must meet the minimum safety requirements. The fact that it may be used in a racing environment does not in and of itself justify a manual deactivation feature. Manufacturers may design racing vehicles not for use on public roads that do not meet the FMVSS.

Volkswagen and the Alliance requested reconsideration of the agency's decision to disallow a manual deactivation feature based on data submitted by Volkswagen. Petitioners stated that data collected in Europe showed that, among a fleet of over 30,000 UNECE Regulation No. 152 compliant vehicles which collectively took more than 12 million trips, only 0.2 percent of the vehicles deactivated their AEB systems more than 10 times. According to petitioners, this data indicates that less than 0.005 percent of all trips involved AEB deactivation and that while drivers did use the manual deactivation feature, they did so very rarely. Thus, they argued that allowing the manual deactivation feature, with appropriate multi-step procedures to prevent inadvertent deactivation, would not significantly diminish the overall benefits of AEB systems.

NHTSA is unpersuaded that the data provided by Volkswagen demonstrates that NHTSA should adopt the approach taken by UNECE Regulation No. 152. Generally, the driving environment (road and lane design, etc.) and driver habits in the United States differ substantially from those in Europe, and there is also significant variation within European nations. These differences may result in differences in how drivers interact with AEB technology. The petitioners did not present evidence that data from the European market accurately represents driver behaviour in the U.S. market. In view of the safety concerns expressed in the final rule and by commenters, harmonization alone is an insufficient justification for allowing a control to deactivate the AEB system. As a result, we will not adopt the UNECE Regulation No. 152 approach.

Therefore, no reconsideration is necessary. NHTSA is denying the petitions for reconsideration regarding amending the automatic deactivation provision or the restriction on installing a manual deactivation control.

The final rule contains a test scenario in which an obstructed pedestrian enters the path of the vehicle from the right.

In its petition for reconsideration, the Alliance argued this performance test requirement demonstrates that the final rule is impracticable. The Alliance asked NHTSA to reduce the maximum test speed and align the headways more closely with the results of NHTSA's testing.

The Alliance provided a case study of a narrow vehicle avoiding contact with the test mannequin using the boundary conditions specified in the rule and realistic vehicle stopping dynamics (a peak braking acceleration of 0.9 g and an initial braking rate of 3 g/s). The Alliance stated in its analysis that, when using nominal tolerances on the location of the vehicle test device relative to the subject vehicle positioning, the vehicle with a width of 1570 mm (61.8 in) had approximately 0.35 seconds to identify the crossing pedestrian and begin braking. However, in its analysis, when that same subject vehicle was at the maximum distance away from the intended travel path, and the vehicle test device was located as close to the side of the subject vehicle, only 0.15 seconds were available to react to the crossing mannequin. The Alliance stated that a response time of 0.15 seconds is beyond the capabilities of any AEB system and is not practicable.

Agency calculations confirmed the issue raised by the Alliance regarding the perception time in obstructed pedestrian testing at the maximum allowable test tolerances. However, the agency does not agree that this finding is an indication of the standard's fundamental impracticability. Therefore, NHTSA is amending the requirement to align with the intent of the scenario to ensure that the specified tolerances do not result in an unintentionally stringent test.

The final rule specified that subject vehicles would nominally be a meter away from the side of the vehicle test device when performing obstructed pedestrian testing. As the Alliance highlighted, the tolerance of the subject vehicle relative to the intended travel path (+/- 0.15 m), and the tolerance of the vehicle test device relative to the side of the subject vehicle (+/- 0.1 m) could add up such that the minimum distance could be 0.75 m instead of the intended 1 m. The reduction of the intended distance between the vehicle and the pedestrian mannequin by 25 percent has a significant impact on how much time the system has to determine whether to initiate braking. Additionally, as the Alliance highlighted, because we were primarily determining the vehicle test device location relative to the side of the subject vehicle, the narrower the vehicle, the less time that vehicle has to perceive the obstructed pedestrian and decide to begin braking. For narrower vehicles, this scenario renders the test more stringent than NHTSA intended.

To address the issue, the agency is adjusting how the tolerances are defined in S8.3.3, so that at most, the vehicle test device is not less than 1.0 m away from the 0 percent overlap point (the right side of the vehicle). For vehicles up to 2.05 m (79.5 in) wide, which is a majority of passenger cars, the left side of the vehicle test device will be no less than 2.2 m away from the intended travel path. This standard places the left side of the vehicle test device at least 1.15 m away from the right side of the subject vehicle, which accounts for the +/- 0.15 m lateral tolerance of the subject vehicle relative to the intended travel path prior to braking. To make sure testing is consistent, and to make sure that testing stringency does not increase for vehicles wider than 2.05 m (79.5 in), the left side of the vehicle test device will be no less than 1.15 m away from the subject vehicle.

Therefore, NHTSA is amending the specifications for the obstructed pedestrian crossing test.

The final rule requires the FCW auditory signal to have a high fundamental frequency of at least 800 Hz, a tempo in the range of 6-12 pulses per second, and a duty cycle in the range of 0.25-0.95, and a minimum intensity of 15-30 dB above the masked threshold.

The Alliance stated that the requirements related to the auditory signal lack specificity and were therefore not objective. The Alliance stated that the threshold sound level largely depends on the ambient noise at a given moment in time and conditions such as vehicle speed and engine, tire/road, and wind noise. It concluded that for the requirement to be objective, NHTSA must clearly define several key characteristics, including the test conditions under which both the ambient noise and the masked threshold are measured as well as the methodology to measure and compute the sound level of the FCW warning and the noise separation amount ( i.e., 5 dB). The Alliance also stated that there may need to be exceptions for high ambient noise conditions, such as convertibles with an open top.

Volkswagen similarly commented that additional information relating to compliance testing is needed such as details of the means and conditions for measuring the reference noise level to which the regulation will compare the FCW auditory signal and inquired whether the vehicle's windows would be open and/or HVAC system would be active during the testing. The Alliance, as part of its comments regarding the audio suppression requirement (the remainder of which are discussed in the next subsection), also requested additional conditions regarding the “masked threshold” and how it will be assessed. Volkswagen also questioned the meaning of “quietest level” in the masked threshold definition and how to measure it. It further asked whether masked threshold would be determined based on a person with normal hearing or impaired hearing.

In response to petitions, NHTSA is incorporating additional description of the conditions in which the FCW auditory requirements must be met, detailing the location of the sound measurement device, and replacing “masked threshold” with “average noise level inside the vehicle.” We are incorporating them to ensure clarity and to facilitate compliance.

We are adding several specifications to the FCW auditory requirement. First, that the auditory signal requirements must be met at the highest SV test speed (which is 100 km/h). Second, we are specifying that the audio requirements are met with all vehicle openings closed. This language is intended to clarify for certifying entities that during the test, openings such as the windows, doors, hood, rear hatch, and trunk will be closed, as will convertible tops. Third, the provision now states that all subject vehicle sound-producing systems or functions are set to off, other than those necessary for performing testing under the rule. This language is intended to describe systems such as the HVAC, windshield wipers, and turn signals, which produce noise that may impact measurement of sound inside the vehicle, but which are not necessary for testing. These additions provide significant clarity regarding the conditions under which the signal will be measured. The FMVSS already states that FCW must operate under the conditions in S6, which includes items that may impact the in-vehicle sound environment, such as the environmental conditions, road conditions, subject vehicle conditions, and equipment. Therefore, those conditions will not be further specified.

NHTSA is also incorporating the intended sound measurement location, adjacent to a 50th percentile male driver's right ear tragion point. This point is identified in the anthropometric data from a NHTSA-sponsored study of the dimensions of 50th percentile male drivers seated with a 25-degree seatback angle (“Anthropometry of Motor Vehicle Occupants”). 62 The tragion is an anthropometric point situated in the notch just above the tragus of the ear and is located 614 mm vertically above the H point (hip location of a driver in the driver seating position), 185 mm aft of the H point, and 83 mm to the right of the H point.

We are also simplifying the baseline sound level against which the FCW auditory signal intensity is compared by replacing the term “masked threshold” with “average noise level inside the vehicle.” We are also incorporating a description of how that level will be determined: by measuring the noise level inside the vehicle over a 5-second period under the conditions described above. This change resolves items raised by petitioners regarding defining additional aspects of the “masked threshold” as well as Volkswagen's petition regarding the hearing ability of the reference driver by simplifying the measurement to focus solely on the noise level inside the vehicle.

Therefore, NHTSA is incorporating these three changes to clarify the requirements applicable to the FCW auditory warning.

The final rule required that in-vehicle audio that is not related to a safety purpose or safety system ( i.e., entertainment and other audio content not related to or essential for safe performance of the driving task) must be muted, or reduced in volume to within 5 dB of the masked threshold during presentation of the FCW auditory signal.

The Alliance requested reconsideration of the requirement. The Alliance and Volkswagen stated that the requirement lacked objectivity and a corresponding test procedure. The Alliance requested that NHTSA eliminate the requirement or issue an SNPRM proposing to define the audio sources that must be suppressed and “safety purpose or safety system” sounds that are not required to be suppressed. It also asked NHTSA to propose performance requirements defining the threshold for when the audio suppression must begin, with an associated test procedure. Finally, the Alliance argued that NHTSA did not adequately consider consumer satisfaction concerns with the suppression requirement and that consumers may be unaccustomed to it, believing their audio is not working or seeking to disable the audio suppression feature.

The Alliance stated that the phrase “not related to a safety purpose or a safety system” contains undefined terms that are not explained except with a parenthetical reference to entertainment. The Alliance, in its petition, noted that audio suppression systems cannot distinguish between certain content that may or may not have a safety purpose: for example, a radio broadcast of a talk show host versus a radio broadcast of an emergency weather alert. It noted that the language may result in suppression of broadcasts of FEMA's Integrated Public Alert and Warning System, which the Alliance noted was established by Executive Order 13407 to ensure that the public has access to critical alerts about weather and other emergencies. Petitioners also requested that NHTSA provide definitions indicating which audio sources must be suppressed and which do not. The Alliance mentioned examples for which it was not sure whether the suppression requirement would apply, such as the HVAC, defroster, seat belt reminder alarms, intelligent speeding assist indicators, and road departure alerts.

In response to this petition, NHTSA is amending the language to clarify that the requirement is to suppress audio not related to a crash avoidance warning. The intent of the requirement was to ensure that auditory signals unrelated to the vehicle's crash avoidance response in an imminent crash avoidance scenario would not interfere with the driver's perception of the FCW and thereby hinder their opportunity to intervene and avoid a crash. Given that petitioners' concerns appear to be regarding vagueness, NHTSA is clarifying the requirement to reference a more specific set of audio signals that should not be suppressed: in-vehicle audio that is “not related to a crash avoidance system warning.”  63 NHTSA is also removing the explanatory parenthetical associated with “safety purpose or safety system,” as it is no longer applicable. This change also resolves concerns with systems being able to distinguish between regular and emergency broadcasts, because emergency broadcasts are not related to a crash avoidance system warning and would therefore need to be suppressed.

Regarding the Alliance's question whether a vehicle's HVAC system and window defrosting system should be considered in-vehicle audio, they should not. In-vehicle audio is to be understood to refer to auditory signals and content produced or transmitted by the vehicle for the purpose of communicating information, entertainment, or other purpose not related to or essential for safe performance of the driving task. Although the regulation does not define “audio,” NHTSA's understanding of the term is consistent with its plain meaning. For example, Webster's dictionary defines the noun, “audio,” to refer to “an audio signal.”  64 Cambridge Dictionary defines the noun “audio” to mean “a sound recording, or recorded sound.”  65 These definitions suggest “audio” to refer to purposeful sounds emitted to communicate or provide some form of information (including entertainment). Noise stemming from the operation of HVAC systems or windshield defrosters would not be considered “in-vehicle audio.” On the other hand, auditory navigation instructions are considered audio and are subject to the suppression prevision. Therefore, the regulation is clear as written.

The arguments regarding consumer acceptance are not persuasive. An FCW alert is only required in a crash-imminent scenario, and the muting of in-vehicle audio would be accompanied by the FCW audio signal. In such a crash-imminent scenario, it is not evident that the muting of in-vehicle audio would be of any concern to a driver.

Additionally, in responding to this petition, NHTSA examined 15 model year 2016-2024 light vehicle models from 12 manufacturers to determine whether in-vehicle audio muting during FCW presentation was employed. Of 15 models examined, 11 models from 10 manufacturers were found to mute in-vehicle audio during FCW presentation. A twelfth vehicle (2022 Hyundai Tucson) reduced the volume of in-vehicle audio during FCW presentation. Three models did not appear to mute or reduce the volume of in-vehicle audio during FCW presentation (2022 Honda Odyssey, 2023 Nissan Pathfinder, and 2022 Subaru Outback). Aside from in-vehicle audio suppression during FCW, in-vehicle audio suppression under other circumstances is already present vehicles today as well. For example, some current vehicles mute in-vehicle audio while the vehicle's transmission is in reverse gear. Audio sources in the vehicle can also be muted by apps on a phone connected to the vehicle, such as the Ring app (camera motion notifications will mute vehicle audio sources) and the Waze navigation app, which mutes vehicle audio sources while audio route instructions and other app-based verbal information is provided. Given the ubiquity of suppression of in-vehicle audio during FCW presentation, as well as other vehicle features and phone apps that suppress the vehicle's entertainment system and other in-vehicle audio, the petitioner's contention that customers will find the required audio suppression during FCW presentation to be unfamiliar and cause dissatisfaction is not compelling.

The Alliance stated that the suppression requirement is not objective because it lacks a definition of “presentation,” and information regarding when the FCW must present or when suppression of in-vehicle audio must occur (such as whether it must occur immediately upon FCW presentation or within a specified period of time). It noted that NCAP, IIHS, and European procedures all contain a TTC value for when the FCW must present. Volkswagen and the Alliance also petitioned regarding the lack of an objective test methodology for the suppression requirement.

Petitioners' arguments do not justify reconsideration on this issue. NHTSA is not incorporating a specified timing at which the FCW signal's onset must occur, a definition of “presentation,” or a regulatory test procedure for evaluating the suppression requirement. FCW is required without an associated timing requirement because there is no regulatory safety need to require FCW at for any particular amount of time prior to automatic braking. Therefore, the FMVSS gives manufacturers flexibility in determining the timing of the FCW presentation for their vehicles.

NHTSA will also not provide a definition of “presentation” because the plain meaning of the term and its use in context is not vague or unclear. 66 The term is used only once in the regulatory text to describe the suppression requirement. Additionally, “FCW onset” is defined as the first moment in time when a forward collision warning is provided. In understanding the meaning of “presentation,” manufacturers may consider viewing “FCW onset” as the moment at which “presentation” begins, and that “presentation” encompasses the entire time that the audible signal is active. Additionally, given the short, approximately 1-2 second duration of most FCW auditory signals, any delay in suppressing other audio content could hinder the driver's ability to perceive the warning. As such, onset of the muting of in-vehicle audio should be simultaneous with the onset of the FCW auditory signal. There is no reason to believe, and petitioners did not suggest, that AEB systems are incapable of sending concurrent commands to initiate both FCW presentation and muting of in-vehicle audio or that response times for sending commands to initiate the FCW and the suppression would be different. Therefore, NHTSA does not expect substantial delay in suppression.

Regarding a test procedure, the changes in this rule resolve many of the questions petitioners had regarding vehicle state and sound measurement such that manufacturers have clear guidance on the suppression requirement. Therefore, no additional test procedure will be added. However, for clarity below we describe straightforward and readily apparent steps we expect to take in evaluating the requirement.

NHTSA anticipates recording and evaluating audio data during the performance of the test scenario including the activation of FCW, and manufacturers may reasonably certify to the suppression requirement by using any of the required test scenarios while audio content subject to the muting requirement is playing ( e.g., music). The first opportunity to measure the muted or reduced audio level would be during the period after the first FCW auditory signal pulse and before the start of the second pulse. Sound level would be recorded beginning some time before the onset of FCW and through the end of FCW presentation. Recorded audio data would be analyzed to extract sound level (in dB) values during the FCW pulse and the period between the first and second FCW auditory signal pulse. The sound level between pulses would be analyzed to demonstrate that the sound level had been reduced to the required level of within 5 dB of the average noise level inside the vehicle.

For these reasons, no reconsideration is needed on this issue.

The final rule states that the FCW visual signal must be located within an ellipse that extends 18 degrees vertically and 10 degrees horizontally of the driver forward line of sight based on the forward-looking eye midpoint (Mf) as described in S14.1.5. of FMVSS No. 111. It also requires that the signal include the crash pictorial symbol in SAE J2400 and that the visual signal be red and steady burning.

Both the Alliance and Volkswagen stated that the requirements are insufficient to be objective or for evaluating compliance and requested several revisions to the rule. The Alliance requested that NHTSA issue an SNPRM to propose performance requirements and test procedures.

In response to the petitions, NHTSA has determined that reconsideration is warranted on some of the items and is making changes to the regulatory text to ensure clarity in the requirements. However, comment was sought on these issues in the NPRM, and NHTSA has determined that no additional opportunity for comment is necessary, as explained in section IV. Rulemaking Analyses and Notices. 67 Therefore, NHTSA will not issue an SNPRM, and is finalizing the changes herein.

In its petition, the Alliance stated that the FCW visual signal requirements do not define the size of the FCW symbol.

NHTSA is not incorporating a size requirement for the FCW visual signal because there is no need for such a requirement. Not specifying a minimum or maximum FCW visual signal size provides manufacturers some flexibility in how the symbol is implemented for their system.

Volkswagen requested clarification of the regulatory language regarding the required location of the FCW visual signal. Volkswagen noted that S5.1.1(b)(1) of the regulation states that “[t]he visual signal must be located within an ellipse that extends 18 degrees vertically . . . of the driver forward line of sight,” but that it is not clear whether this language means ± 18 degrees or ± 9 degrees from the driver's line of sight.

NHTSA grants reconsideration on this issue and is amending the regulation to provide clarity. The regulatory language was intended to specify an elliptical cone extending ±18 degrees vertically and ±10 degrees horizontally from the driver's line of sight. Therefore, a plus-minus sign will be added.

Volkswagen stated that the requirements were unclear as to whether the entire FCW visual icon or only a portion of it must be located within the bounds of the elliptical cone.

Reconsideration is justified on this issue. NHTSA intended the regulation to require that the required FCW symbol must be presented fully within the defined elliptical area and is updating the regulatory text to reflect this intent. NHTSA is incorporating the word “symbol” after “visual signal” in the S5.1.1(b)(1) to clarify that the symbol is what must be located within the specified area. If a manufacturer chooses to provide any additional visual warning components ( e.g., illuminating the perimeter of the instrument panel, or surrounding the symbol with an illuminated, color-shaded shape), the additional components are not required to be located within the specified elliptical area.

The Alliance and Volkswagen stated that S5.1.1(b) of the final rule requires the visual signal to be located in an ellipse formed around the forward-looking eye midpoint of the driver “as described in S14.1.5 of FMVSS No. 111” but does not specify the driver seat position and seat back angle or the steering wheel adjustment like FMVSS No. 111 does.

Reconsideration is justified on this issue. Although explicitly stating these details is not essential because to accurately locate the driver eye midpoint “test reference point” as defined in FMVSS No. 111 S14.1.5 it is necessary to follow the “Driver Seat Positioning” specifications in S14.1.2.5, NHTSA is changing the regulatory text for clarity to refer to S14 of FMVSS No. 111 instead of only S14.1.5. This change incorporates the relevant information from FMVSS No. 111.

The Alliance argued that the agency did not adequately consider the costs of the requirements, including consideration of the disbenefits that might be induced by the new standard. It requested that NHTSA revise its cost assessment to consider more realistic assessments of the hardware additions and other changes that will be required by the final rule, as well as identify and quantify the disbenefits in terms of increased rear-end collisions and other crashes that will be induced by the final rule, at least for several more years. In its petition, the Alliance argued that the conclusions in the FRIA are not based on the rulemaking record or on the facts in the market and led NHTSA to substantially underestimate the costs of compliance with the new standard. Based on a survey of its members, the Alliance stated that the additional costs to make current systems compliant range from $200 per vehicle on the low end to $4,200 per vehicle on the high end. The Alliance also claimed that NHTSA mischaracterized a meeting NHTSA had with Robert Bosch LLC (Bosch) regarding the percentage of vehicles in the fleet that may need hardware improvements.

Volkswagen stated the cost analysis as reported in the FRIA does not represent the true cost of the final rule. For example, Volkswagen argued, the requirements of the final rule cannot be reasonably met with existing vacuum brake systems, and the PAEB requirements under conditions of darkness may necessitate infrared cameras. It stated that NHTSA did not account for the costs for additional hardware in its analysis.

The Alliance and Volkswagen's claims that the final rule did not adequately consider costs in improvements in AEB technology are mistaken. The Alliance's cost estimates are not correct estimates of the cost of compliance with the final rule because they include the cost of including head-up display (HUD) and lidar, neither of which are required to meet the requirements and account for a large portion of that higher estimate.

Additionally, the final rule fully considered the cost concerns raised by petitioners. NHTSA sought and received comment regarding hardware costs. Comments did not indicate the incremental cost associated with additional hardware commenters believed was necessary to achieve the requirements or the percentage of new light vehicles that they believe would require additional hardware. Nevertheless, the cost analysis in the FRIA accounted for a small number of new light vehicles that may need additional hardware for their existing AEB systems, such as an additional camera or radar, by including the incremental cost of adding radar to five percent of new light vehicles. 68 The Alliance disputed the 5 percent figure, noting that the information NHTSA received from Bosch suggests larger improvements are needed, and NHTSA received a letter from Bosch clarifying the figure. 69 NHTSA appreciates Bosch's clarification. However, even if NHTSA accepts for the sake of argument that the incremental cost estimate undercounts that percentage of new light vehicles that need additional improvements in computing power or sensing technologies, NHTSA's analysis fully considered these costs because the FRIA also included a sensitivity analysis. 70 The sensitivity analysis found that even in the case that 50 percent of new light vehicles would need to add radar to their current hardware and all new light vehicles needed a software upgrade, the final rule would remain highly net beneficial. The FRIA also includes a breakeven analysis that estimates the per-vehicle cost at which net benefits would be zero. Therefore, NHTSA's cost and benefits estimates for AEB system hardware and software were sufficient to support the final rule.

NHTSA's analysis also considered comments and the available data regarding whether the final rule would necessitate improvements in vehicles' foundational braking system and found that it would not. The agency found that vehicles subject to the final rule would already be equipped with brakes that give them the braking capabilities to meet the performance requirements specified in the final rule. 71 The FRIA discussed a summary of the braking test results from FMVSS No. 135 testing. 72 In all cases, vehicles covered by the final rule exceed the minimum requirements of the braking standards. The results further indicate that baseline vehicles already have the braking capabilities necessary to meet the minimum requirements for AEB. Additionally, NHTSA believes that the most cost-effective way (lowest cost option) for manufacturers to meet the requirements of FMVSS No. 127 is through tunning and calibration of the AEB systems rather than through increased braking capacity or additional brake hardware such as electro-hydraulic brake actuators. As NHTSA's analysis focuses on the lowest cost option that is estimated to be capable of meeting the final rule and the lowest cost option does not necessitate increased braking capacity, the costs incurred by increasing the foundational braking system were not considered. That being said, the agency provides flexibility in how manufacturers construct their AEB systems to meet the requirements and they may well choose to include brakes with increased capabilities. At any rate, the breakeven and sensitivity analyses demonstrate that even with significant per-vehicle hardware costs beyond those estimated in the FRIA, the final rule would remain cost-beneficial.

Lastly, petitioners simultaneously claim that the final rule is impracticable but also that the requirements can only be met if certain hardware improvements are made. Given that the final rule would be economically practicable even with sizable increases in compliance costs, these statements are contradictory. Indeed, petitioners' claims regarding cost support the notion that the final rule is practicable by acknowledging the availability of technologies that can enable vehicles to meet the requirements.

Therefore, no reconsideration is necessary. NHTSA is denying the petitions for reconsideration regarding NHTSA's cost estimates.

The final rule specified how the brake pedal force is applied during testing conducted with manual brake application. It left to the manufacturer the discretion to select the braking method that NHTSA will use when NHTSA tests the manufacturer's vehicles.

Volkswagen requested reconsideration of the decision not to provide specifications for the brake pedal robot used in the manual braking tests. It stated that differences in test equipment between the agency's test contractors and the vehicle manufacturer could lead to inconsistencies in performance.

NHTSA received comments on this issue (including from Volkswagen) and responded to them in the final rule. NHTSA clarified that the rule does not require use of a specified braking robot. The final rule specifies the brake pedal force application during testing, leaving it to the manufacturer's discretion to select the braking method for NHTSA's testing of its vehicles. The specification is sufficient to ensure test repeatability, especially given manufacturers' lengthy experience with braking robots in AEB testing. Since the petitioner did not present any new information that would warrant reconsidering the agency's prior conclusion, no reconsideration is necessary, and we are denying the petition for reconsideration regarding the brake pedal robot specifications.

Glickenhaus petitioned NHTSA to reconsider and amend the standard to only require FCW ( i.e., not AEB) for vehicles with manual transmission. Glickenhaus stated that substantial slowing or stopping from highway speeds in a vehicle with a manual transmission will stall the vehicle without manually shifting or engaging the clutch. It stated that sudden unnecessary braking caused by the final rule will cause a vehicle with a manual transmission to stall, thereby reducing the functionality of the brakes. A stalled vehicle, Glickenhaus stated, can create an unreasonable risk if the vehicle is on the highway and cannot move out of the way. Further, Glickenhaus stated that NHTSA's existing standards have a precedent of differentiating requirements and testing procedures for manual transmissions from those for automatic transmissions where the technology requires. Glickenhaus provided examples of those standards and what it stated are the relevant sections. Additionally, Glickenhaus stated that one FMVSS testing facility it works with confirmed that whenever it runs AEB tests on any vehicle with an automatic transmission, 73 the vehicle always stalls. Glickenhaus also stated that its manual gearbox supplier confirmed that will always be the case, and that this stalling could damage the drivetrain. Glickenhaus further stated that NHTSA recognizes that vehicle stalling, especially when unexpected at highway speeds, is a “substantial” hazard. Glickenhaus also stated that drivers using manual transmissions are more likely to be paying closer attention to the road than drivers of vehicles with cruise control, or any level of “self driving” vehicle functionality. Glickenhaus's petition stated that requiring only FCW for manual transmissions could increase safety by warning drivers while allowing them to place the vehicle into neutral or press the clutch to avoid stalling while braking.

NHTSA is unpersuaded that the technical limitations of AEB with manual transmission vehicles justifies excluding them from the AEB requirement. Our review of the fleet shows that AEB technology already exists for manual transmissions. Therefore, no reconsideration is needed.

There are many light vehicles sold in the US which still offer manual transmission as an option or standard. 74 Several vehicles equipped with manual transmissions, such as the 2024 Honda Civic Type R, 75 2024 Ford Bronco  76 and 2024 Nissan Z, 77 also come with AEB and PAEB as a standard feature. Due to the wide availability of technology from various suppliers with AEB and manual transmissions, NHTSA is not persuaded that only manual application of the clutch can prevent a stall.

NHTSA is also unpersuaded that drivers of manual transmission vehicles are more engaged such that excluding them from the AEB requirement would be justified. As noted in the final rule, the timing of AEB and PAEB events do not always allow sufficient time for the driver to react and apply the brakes when a FCW is presented, regardless of the level of driver engagement.

Therefore, no reconsideration is necessary. NHTSA is denying the petition for reconsideration regarding requiring only FCW for vehicles with a manual transmission.

The final rule did not alter requirements for small-volume manufacturers but allowed an additional year for compliance for small-volume manufacturers.

Glickenhaus, which produces around 30 vehicles annually subject to the final rule, petitioned for reconsideration of the requirements for small-volume manufacturers, stating that the standard would cause substantial financial hardship. Glickenhaus stated it had contacted Tier 1 suppliers about AEB systems and was informed that the hardware for these systems is typically developed by larger manufacturers, and there is not a baseline set of hardware and software available for Glickenhaus to develop an AEB system for its very low volume vehicles. It noted that developing AEB hardware takes years, and the software calibration requires millions of miles of driving. Glickenhaus claims it cannot produce enough cars and drive them long enough to gather the necessary data to create compliant hardware and software for its very low volume vehicles. Therefore, according to Glickenhaus, unless Tier 1 suppliers develop starting packages for small-volume manufacturers, it would be impossible to develop a rule compliant AEB system within the lead time provided.

Glickenhaus further emphasized the challenges of software development, vehicle testing, and calibration miles, which it considers nearly impossible to achieve within the given timeframe, even with an additional year. It argued out that some manufacturers have spent over 20 years developing and testing AEB systems, and that the costs of developing software and hardware for a driving automation system, including AEB functions, can exceed $ 10 billion annually—figures that the petitioner cannot manage.

The agency initially proposed that the requirements would not apply to small-volume manufacturers until one year after the compliance date set for other manufacturers. NHTSA received more than 1,000 comments on the NPRM, including input from sensor developers that indicated that the technologies required to meet the standard are already available. 78 In the final rule, the agency provided additional lead time for all manufacturers and continued to provide small-volume manufacturers an additional year beyond other manufacturers. Given the comments we received and the availability of these systems, we expect that small-volume manufacturers will be able to source rule-compliant AEB systems for their vehicles from existing technologies without incurring undue expenses in research and development. 79

However, we acknowledge that there could be specific situations in which it may be particularly challenging for small-volume manufacturers to source systems. Without additional technical information regarding why Tier 1 suppliers could not provide AEB systems to the petitioner, we cannot provide further analysis regarding their circumstances. However, if the petitioner believes that the standard will cause substantial financial hardship and it has attempted to comply with the standard in good faith, it may be able to seek a temporary exemption pursuant to 49 U.S.C. 30113 and 49 CFR part 555, subject to a determination that an exemption is consistent with the public interest.

Therefore, no reconsideration is necessary. NHTSA is denying Glickenhaus's petition for reconsideration of the requirements for small-volume manufacturers.

In addition to the petitions for reconsideration discussed above, NHTSA also received a petition from Autotalks on June 26, 2024. Pursuant to 49 CFR 553.35, petitions for reconsideration must be received “not later than 45 days after publication of the rule in the Federal Register .” Additionally, the regulation states that “[p]etitions filed after that time will be considered as petitions filed under Part 552 of this chapter.”  80 Part 552 governs petitions for rulemaking. Although Autotalks's petition requested revision of the final rule, given that Autotalks's petition was received by NHTSA more than 45 days after publication of the final rule, NHTSA will treat that petition as a petition for rulemaking.

Pursuant to Part 552, when deciding on a petition for rulemaking the agency conducts a technical review of the petition, which may consist of an analysis of the material submitted, together with information already in possession of the agency. In deciding whether to grant or deny a petition, the agency considers this technical review as well as appropriate factors, which include, among others, allocation of agency resources and agency priorities.

In its petition, Autotalks requests incorporating a V2X transmitter to the lead vehicle and activating it during the lead deceleration test with a 12-meter gap (Table 1 to S7.1). Autotalks argues that this requirement will allow the tested vehicle to use V2X to complement its sensors. Autotalks provides technical information regarding the capabilities and availability of V2X technology.

NHTSA has conducted an analysis of Autotalks's petition and, after careful consideration, has decided to deny the petition and will not initiate rulemaking proposing to require the installation and use of a V2X transmitter in lead vehicle deceleration AEB testing with 12-meter headway, for the reason stated below.

In November 2023, NHTSA withdrew a proposed rule which had proposed to establish a new FMVSS mandating V2V (vehicle-to-vehicle) communication technology in all new light vehicles. 81 After reviewing comments on the NPRM, NHTSA determined that, although V2V and V2X technologies may improve safety and offer innovative services to consumers, significant analysis would be needed before determining whether a new V2V standard is appropriate, and, if so, what that standard would encompass. NHTSA's position has not changed since then and Autotalks has not provided information to change that position. Therefore, NHTSA will not initiate a rulemaking to require V2X technologies in AEB systems as a result of this petition. As we stated in the November 2023 withdrawal notice, NHTSA will continue to monitor the development of this technology for possible future vehicle safety applications.

In accordance with 49 U.S.C. 30162 and 49 CFR part 552, the petition for rulemaking from Autotalks is denied.

This rule is a non-significant rule for purposes of Executive Order (E.O.) 12886, as supplemented by E.O. 13563 and amended by E.O. 14094, and will not impose any significant costs or have impacts beyond those analyzed in the final rule published on May 9, 2024. 82 DOT has determined that the regulatory analyses conducted for the May 9, 2024 final rule remain applicable to this action. DOT makes these statements on the basis that this final rule makes technical or clarifying changes to FMVSS No. 127 as established in the May 9, 2024 final rule. In addition, this final rule is not expected to impact the estimated costs and benefits detailed in the final regulatory impact analysis included in the docket listed in beginning of the final rule published on May 9, 2024.

NHTSA finds it has good cause to make these changes without notice and comment pursuant to the Administrative Procedure Act (APA, 5 U.S.C. 551, et seq. ). Section 553(b)(B) of the APA provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. The May 2024 final rule is the product of an extensive administrative record with opportunity for public comment on the issues discussed in this final rule. The changes in this final rule are made in response to petitions for reconsideration submitted to NHTSA in response to and docketed in the record of the May 2024 final rule in accordance with 49 CFR 553.35 and 49 CFR 553.37. 83 In response to those petitions, NHTSA makes only clarifying changes to the May 2024 final rule to align the regulatory text with the explanatory material in the preamble of that final rule.

Specifically, NHTSA removes the term “imminent” from the performance test requirement. This change resolves a point of confusion expressed by petitioners and aligns the regulatory text with the intent of the May 2024 rule as expressed in the preamble by clarifying that the performance test does not evaluate AEB activation timing. NHTSA also amends a test scenario in FMVSS No. 127 highlighted by petitioners that, when tested with very narrow vehicles at the extreme of the tolerances allowed by the test condition, resulted in a stringency beyond that intended by NHTSA. NHTSA makes that amendment to ensure the correct level of stringency. Petitioners also requested clarification of the specifications in FMVSS No. 127 for the FCW visual signal location. NHTSA amends the regulatory text to clarify these specifications. Petitioners also expressed concerns about the clarity and objectivity of the requirements and test conditions in FMVSS No. 127 for the FCW audio signal. NHTSA clarifies these requirements by stating the location of the microphone and additional vehicle conditions under which testing will occur, as well as amending the definitions to simplify the requirement for suppression.

Given the above, NHTSA finds that additional comment on the changes herein made in response to petitions for reconsideration of the May 2024 final rule is unnecessary.

The Congressional Review Act, 5 U.S.C. 801 et. seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. NHTSA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This rule does not meet the criteria in 5 U.S.C. 804(2) to be considered a major rule.

NMFS manages the Gulf reef fish fishery, which includes lane snapper, under the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP). The FMP was prepared by the Gulf of Mexico Fishery Management Council (Council), approved by the Secretary of Commerce, and is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) through regulations at 50 CFR part 622. All lane snapper weights discussed in this temporary rule are in round weight.

The current stock ACL for Gulf lane snapper was implemented on October 18, 2024, and is 1,088,873 lb (493,904 kg) (50 CFR 622.41(k)) (89 FR 76438, September 18, 2024). As specified in 50 CFR 622.41(k), if the sum of the commercial and recreational landings reaches or is projected to reach the stock ACL, NMFS will close the commercial and recreational sectors for the remainder of the fishing year. Based on latest landings estimates, which were available in October 2024, NMFS has determined that the stock ACL for Gulf lane snapper has been reached. Accordingly, this temporary rule closes the commercial and recreational sectors for Gulf lane snapper effective at 12:01 a.m., local time, on November 26, 2024, and both sectors will remain closed through the end of the current fishing year on December 31, 2024.

During the commercial and recreational closures, all harvest or possession in or from the Gulf EEZ of lane snapper is prohibited. The prohibition on possession of Gulf lane snapper also applies in Gulf state waters for a vessel issued a valid Federal charter vessel/headboat permit for Gulf reef fish. During the closures, the operator of a vessel with a valid commercial vessel permit for Gulf reef fish having lane snapper on board must have landed and bartered, traded, or sold such lane snapper prior to 12:01 a.m., local time, on November 26, 2024. The prohibition on the sale or purchase of lane snapper does not apply to fish that were harvested, landed, and sold prior to 12:01 a.m., local time, on November 26, 2024, and were held in cold storage by a dealer or processor.

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR 622.41(k), which was issued pursuant to section 304(b) of the Magnuson-Stevens Act, and is exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and opportunity for public comment on this action, as prior notice and public comment are unnecessary and contrary to the public interest. Such procedures are unnecessary because the regulation authorizing this temporary closure, 50 CFR 622.41(k), has already been subject to prior notice and public comment, and all that remains is to notify the public of the closure. Prior notice and opportunity for public comment are contrary to the public interest because there is a need to immediately implement this action to protect the lane snapper stock. Prior notice and opportunity for public comment would require time and allow for additional harvest in excess of the stock ACL.

For the aforementioned reasons, the Assistant Administrator also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).

NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan (FMP) for Groundfish of the BSAI prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Regulations governing fishing by U.S. vessels in accordance with the BSAI FMP appear at subpart H of 50 CFR parts 600 and 679.

The 2024 TAC of Pacific ocean perch, in the EAI, allocated to vessels participating in the BSAI trawl limited access sector fishery was established as a directed fishing allowance of 702 metric tons by the final 2024 and 2025 harvest specifications for groundfish in the BSAI (89 FR 17287, March 11, 2024).

In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific ocean perch in the EAI by vessels participating in the BSAI trawl limited access sector fishery. While this closure is effective, the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR part 679, which was issued pursuant to section 304(b), and is exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest, as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion, and would delay the closure of Pacific ocean perch directed fishery in the EAI for vessels participating in the BSAI trawl limited access sector fishery. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of November 20, 2024.

The Assistant Administrator for Fisheries, NOAA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR parts 600 and 679.

The 2024 TAC of Atka mackerel, in the BS/EAI, allocated to vessels participating in the BSAI trawl limited access sector fishery was established as a directed fishing allowance of 2,787 metric tons by the final 2024 and 2025 harvest specifications for groundfish in the BSAI (89 FR 17287, March 11, 2024).

In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Atka mackerel in the BS/EAI by vessels participating in the BSAI trawl limited access sector fishery. While this closure is effective, the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR part 679, which was issued pursuant to section 304(b), and is exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest, as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the directed fishing closure of Atka mackerel in the BS/EAI for vessels participating in the BSAI trawl limited access sector fishery. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as November 20, 2024.

The Assistant Administrator for Fisheries, NOAA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.