DOE's OT authority is provided in sections 646(a) and (g) of the Department of Energy Organization Act (Pub L. 95-91, as amended) (42 U.S.C. 7101 et seq. ). Section 646(a) (42 U.S.C. 7256(a)) is a general authority for DOE to enter into contracts, leases, cooperative agreements or “other similar transactions,” and to make payments to public or private entities as the Secretary “may deem to be necessary or appropriate to carry out functions now or hereafter vested in the Secretary.” Section 646(g) (42 U.S.C. 7256(g)) was added to the DOE Organization Act by the Energy Policy Act of 2005 (Pub. L. 109-58) as an OT authority directed specifically to research, development, and demonstration (RD&D).

The authority provided under 42 U.S.C. 7256(g) provides that the Secretary of Energy has the same authority to enter into transactions as the Secretary of Defense under 10 U.S.C. 2371 in carrying out RD&D projects. 1 This authority includes statutory limits on its use, but also authorizes increased flexibilities not available under subsection (a) “General Authority” related to intellectual property and data protection.

Section 646(g)(6) of the Energy Policy Act (42 U.S.C. 7256(g)(6)) required DOE to publish guidelines for transactions under subsection (g) not later than 90 days after the enactment of the statute. DOE published an interim final rule (70 FR 69250) on November 15, 2005, and a final rule on May 9, 2006 (71 FR 27158). At least in part because of this limited statutory timeframe, the original regulations at 10 CFR part 603 were largely modeled on the applicable DOD Technology Investment Agreements (TIAs) and established TIAs as the mechanism for awarding OT agreements under section 7256(g). The purposes of a TIA are to reduce barriers that prevent some entities from participating in DOE's RD&D programs and broaden the technology base available to meet DOE mission requirements. However, TIAs are just one implementation of OTs available under 42 U.S.C. 7256(g).

OT agreements broadly, including TIAs, are more flexible than standard procurement and financial assistance instruments. They allow the DOE to negotiate commercial terms that would be otherwise unavailable in a procurement or financial assistance instrument in a manner that is more familiar to many commercial entities. Thus, unless otherwise noted in this regulation, the laws and regulations applicable to procurement and financial assistance instruments do not apply. This increased flexibility is used to: (1) strengthen our nation's economic and energy security; (2) promote scientific and technological innovation; (3) reduce barriers to participation in RD&D programs by nontraditional government performers and entities, including small businesses and disadvantaged entities; (4) promote new relationships among performers in the U.S. technology base; (5) stimulate performers to develop and use new business practices and disseminate best practices throughout the U.S. technology base; or (6) stimulate RD&D of energy-related technologies, systems, and processes for use by Federal agencies and the public.

In this IFR, DOE is removing miscellaneous references to outdated regulations from the provisions governing the use of OT agreements. DOE is aligning the revised provisions with the authorizing statute and improves the clarity, structure, organization, and administrative efficiency of the provisions to make them applicable to 42 U.S.C. 7256(g) OT agreements beyond the TIAs contemplated in the original regulations. In conjunction with the revisions under this IFR, DOE published a policy guide, “Department of Energy Guide to Other Transactions” that includes the internal DOE processes and specific functions and responsibilities of DOE staff from the provisions removed from 10 CFR part 603.

While some mechanisms (procurement and financial assistance) can meet many of the Department's missions, certain programs require more innovation for successful implementation and would benefit from the flexibility that OT agreements can provide. To provide the efficiencies in the award and administration of OT agreements needed to achieve DOE's mission, there is a need to remove references to outdated regulations, internal processes, and obsolete and unnecessarily restrictive language from the provisions governing the use of OT agreements. This IFR revises existing OTA regulatory provisions and aligns them with the authorizing statute to improve the clarity, structure, organization, and administrative efficiency and to make them applicable to all OT agreements awarded under DOE's authority at 42 U.S.C. 7256(g), not just TIAs. DOE is removing in its entirety and reserving 10 CFR part 603, relocating it in 2 CFR part 930, and renaming it “Other Transaction Agreements.” DOE is removing the provisions of 10 CFR part 603 that are: specific to internal DOE processes or procedures; specific to the functions and responsibilities of DOE staff; and unnecessarily restrictive for use in all OT agreements.

DOE is relocating and revising the remaining provisions of 10 CFR part 603 and adding a deviation provision to 2 CFR part 930 that, consistent with other regulations and policies, provides DOE the authority to deviate from the issuance or use of any policy, procedure, solicitation provision, article, method, or practice of conducting actions of any kind at any stage of the OT award process or administration period that is inconsistent with the OT regulations.

The following discussion details specific revisions made in this IFR by listing sections from current 10 CFR part 603 that were not included in the new 2 CFR part 930, discussing entirely new additions to 2 CFR part 930, and explaining changes to sections of the current 10 CFR part 603 that were retained in new 2 CFR part 930.

DOE is adding a new provision at 2 CFR 930.115 that is substantially similar to provisions already present and widely used in other DOE regulations to address agency deviations from the regulations. The new provision entitled “Deviation authority” gives authority to the cognizant Senior Procurement Executive (SPE), as defined by 41 U.S.C. 1702(c), for DOE or National Nuclear Security Administration to approve the issuance or use of a policy, procedure, provision, article, method, or practice of conducting actions of any kind at any stage of the award process or administration period that is inconsistent with part 930. The new language also requires a program office seeking a deviation to submit a request to the SPE justifying the deviation, and creates a process whereby a deviation from the policy, procedure, provision, article, method, or practice may be requested and approved by the cognizant DOE official.

DOE is removing provisions from 10 CFR part 603 that pertain to internal processes and procedures or that describe the function or responsibility of DOE in its decisions to award and administer OT agreements, including TIAs. The information provided in the following provisions has been included in internal guidance and training materials created for DOE personnel including DOE's Guide to Other Transactions.

DOE is revising the following provisions to update, clarify, streamline, or eliminate coverage that is unclear, obsolete, or unnecessarily duplicates the internal guidance and roles and responsibilities of DOE staff where appropriate. The revisions do not substantially change the existing requirements or how DOE and DOE performers adhere to the OT regulations.

• § 603.100 Purpose has been revised and renumbered to § 930.100 Purpose.

• § 603.105 Description has been revised and renumbered to § 930.400 Use of Technology Investment Agreements (TIAs).

• § 603.110 Use of TIAs has been revised and renumbered to § 930.400 Use of Technology Investment Agreements (TIAs).

• § 603.115 Approval Requirements has been revised and renumbered to § 930.110 Approval Requirements.

• § 603.120 Contracting Officer Warrant Requirements has been revised and included in § 930.110 Approval Requirements.

• § 603.125 Applicability of Other Parts of the DOE Assistance Regulations has been revised and renumbered to § 930.120 Nonprocurement debarment and suspension.

• § 603.205 Nature of the Project has been revised and renumbered to § 930.105 Other transaction (OT) agreements.

• § 603.210 Recipients has been revised and renumbered to § 930.405 TIA awardees.

• § 603.215 Recipient's Commitment and Cost Sharing has been revised and renumbered to § 930. 125 Cost Sharing.

• § 603.220 Government Participation has been revised and renumbered to § 930.415 Government Participation.

• § 603.230 Fee or Profit has been revised and renumbered to § 930. 130 Fee or Profit.

• § 603.400 Competitive Procedures has been revised and renumbered to § 930.135 Competition.

• § 603.415 Cost Sharing has been revised and included in § 930.125 Cost Sharing.

• § 603.420 Disclosure of Information has been revised and renumbered to § 930.140 Disclosure of Information.

• § 603.525 Value & Reasonableness of the Recipient's Cost Sharing Contribution has been revised and included in § 930.125 Cost Sharing.

• § 603.530 Acceptable Cost Sharing has been revised and included in § 930.125 Cost Sharing.

• § 603.535 Value of Proposed Real Property or Equipment has been revised and renumbered to § 930.220 Real property and equipment.

• § 603.615 Financial Management Standards for For-Profit Firms has been revised and renumbered to § 930.205 Financial Management Standards.

• § 603.620 Financial Management Standards for Nonprofit Participants has been revised and renumbered to § 930.205 Financial Management Standards.

• § 603.625 Cost Principles or Standards Applicable to For-Profit Firms has been revised and renumbered to § 930.210 Cost Principles and Standards.

• § 603.640 Audits of For-Profit Firms has been revised and included in § 930.215 Audit requirements.

• § 603.645 Periodic Audits and Award-Specific Audits of For-Profit Participants has been revised and included in § 930.215 Audit requirements.

• § 603.655 Frequency of Periodic Audits of For-Profit Participants has been revised and included in § 930.215 Audit requirements.

• § 603.660 Other Audit Requirements has been revised and included in § 930.215 Audit requirements.

• § 603.665 Periodic Audits of Nonprofit Participants has been revised and included in § 930.215 Audit requirements.

• § 603.680 Purchase of real property and equipment by for-profit firms has been revised and included in § 930.410.

• § 603.700 Standards for Purchasing Systems of For-Profit Firms and § 603.705 Standards for Purchasing Systems of Nonprofit Organizations have been revised and included in § 930.225 Purchasing system standards.

• § 603.805 Payment Methods has been revised and renumbered to § 930.300 Payment Methods.

• § 603.825 Government Approval of Change in Plans has been revised and renumbered to § 930.305 Government Approval of Change in Plans.

• § 603.830 Pre-Award Costs has been revised and renumbered to § 930.310 Pre-Award Costs.

• § 603.840 Data and Intellectual Property Rights has been revised and renumbered to § 930.315 Negotiating Data and Patent Rights.

• § 603.845 Data Rights Requirements has been revised and renumbered to § 930.320 Data Rights.

• § 603.860 Rights to Inventions has been revised and renumbered to § 930.325 Rights in Inventions.

• § 603.865 March-In Rights has been revised and included in § 930.325 Rights in Inventions.

• § 603.875 Foreign Access to Technology and U.S. Competitiveness Provisions has been revised and renumbered to § 930.330 Research Technology and Security and U.S. Competitiveness Provisions.

• § 603.905 Record Retention Requirements has been revised and renumbered to § 930.335: Record Retention Requirements.

• § 603.915 Access to a Nonprofit Participant's Records has been revised and renumbered to § 930.340: Access to Records.

• § 603.920 Termination and Enforcement Requirements has been revised and renumbered to § 930.345 Noncompliance and Termination Requirements.

• § 603.1115 Single Audits has been revised and included in § 930.215 Audit requirements.

DOE will accept comments, data, and information regarding this IFR on or before the date provided in the DATES section at the beginning of this IFR. Interested parties may submit comments, data, and other information using any of the methods described in the ADDRESSES section at the beginning of this document.

Submitting comments via www.regulations.gov. The www.regulations.gov web page will require you to provide your name and contact information. Your contact information will not be publicly viewable except for your first and last names, organization name (if any), and submitter representative name (if any). If your comment is not processed properly because of technical difficulties, DOE will use this information to contact you. If DOE cannot read your comment due to technical difficulties and cannot contact you for clarification, DOE may not be able to consider your comment.

However, your contact information will be publicly viewable if you include it in the comment itself or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. Otherwise, persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.

Do not submit to www.regulations.gov information the disclosure of which is restricted by statute, such as trade secrets and commercial or financial information (hereinafter referred to as Confidential Business Information (“CBI”)). Comments submitted through www.regulations.gov cannot be claimed as CBI. Comments received through the website will waive any CBI claims for the information submitted. For information on submitting CBI, see the Confidential Business Information section below.

DOE processes submissions made through www.regulations.gov before posting. Normally, comments will be posted within a few days of being submitted. However, if large volumes of comments are being processed simultaneously, your comment may not be viewable for up to several weeks. Please keep the comment tracking number that www.regulations.gov provides after you have successfully uploaded your comment.

Submitting comments via email or postal mail. Comments and documents submitted via email or postal mail also will be posted to www.regulations.gov. If you do not want your personal contact information to be publicly viewable, do not include it in your comment or any accompanying documents. Instead, provide your contact information in a cover letter. Include your first and last names, email address, telephone number, and optional mailing address. The cover letter will not be publicly viewable as long as it does not include any comments.

Include contact information each time you submit comments, data, documents, and other information to DOE. If you submit via postal mail, please provide all items on a CD, if feasible, in which case it is not necessary to submit printed copies. No telefacsimiles (faxes) will be accepted.

Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are written in English, and that are free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.

Confidential Business Information. Pursuant to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit via email or postal mail two well-marked copies: One copy of the document marked “confidential” including all the information believed to be confidential, and one copy of the document marked “non-confidential” that deletes the information believed to be confidential. Submit these documents via email or on a CD, if feasible. DOE will make its own determination about the confidential status of the information and will treat it according to its determination. It is DOE's policy that all comments, including any personal information provided in the comments, may be included in the public docket, without change and as received, except for information deemed to be exempt from public disclosure.

Executive Order (E.O.) 12866, “Regulatory Planning and Review,” 58 FR 51735 (Oct. 4, 1993), as supplemented and reaffirmed by E.O. 13563, “Improving Regulation and Regulatory Review,” 76 FR 3821 (Jan. 21, 2011) and amended by E.O. 14094, “Modernizing Regulatory Review,” 88 FR 21879 (April 11, 2023), requires agencies, to the extent permitted by law, to (1) propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public.

DOE emphasizes as well that Executive Order 13563 requires agencies to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible. In its guidance, the Office of Information and Regulatory Affairs (OIRA) has emphasized that such techniques may include identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes. For the reasons stated in the preamble, this regulatory action is consistent with these principles.

Section 6(a) of E.O. 12866 also requires agencies to submit “significant regulatory actions'” to OIRA for review. OIRA has determined that this regulatory action does not constitute a “significant regulatory action” under Executive Order 12866. Accordingly, this action is not subject to review under that Executive Order by OIRA.

Consistent with Executive Orders 12866, 13563 and 14094, DOE issues this IFR only on a reasoned determination that the benefits of the rule justify its costs, and, in choosing among alternative regulatory approaches, DOE has selected those approaches that maximize net benefits. In this IFR, DOE made a broad but largely procedural revision of its other transaction regulation to update and streamline the policies, procedures, and provisions that are currently applicable to its other transaction agreements.

The IFR updates, clarifies, or eliminates coverage that is unclear, obsolete, or unnecessarily duplicates the internal guidance and roles and responsibilities of Federal staff; streamlines the coverage's policies and performer procedures where appropriate; and adds a new provision in order to provide the standard departmental deviation authority provision language. The IFR includes several minor provision revisions, none of which are substantial and in total will have negligible impact on DOE's operations, its performers, or the economy. The revisions do not in any specific case, or in total, substantially change the existing requirements under the existing OT regulations or how DOE and DOE performers adhere to the OT regulations. The IFR does not generate any additional costs.

Finally, the IFR results in benefits to the public. Because the OT regulation has not had a comprehensive update in years, it contains outdated and duplicative content. Additionally, it has citations to outdated regulations and contains sections that are more appropriate for internal procedures and policies. The IFR streamlines the OT regulations, make it easier to read, and reflects current practice and requirements.

The Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., generally requires public notice and an opportunity for comment before a rule becomes effective. Section 553(b) of the APA, however, exempts from the APA's notice and comment procedures rulemakings that involve “rules of agency organization, procedure, or practice.” This exemption is applicable for rules that are primarily directed toward improving the efficient and effective operations of an agency. Mendoza v. Perez, 754 F.3d 1002, 1023 (D.C. Cir. 2014) (internal citations and quotations omitted). As a rulemaking relating to policies, procedures, and provisions that are applicable to the award and administration of certain OT agreements awarded under DOE's OT authority, DOE has determined that this rulemaking is procedural and satisfies the exemption. Therefore, notice of proposed rulemaking (and comment thereon) is not required for the removal and reservation of 10 CFR part 603 and issuance of new 2 CFR part 930 in this IFR.

Although this interim final rule is effective immediately, comments are solicited from interested members of the public on all aspects of the interim final rule. The Department intends to issue a final rule following receipt and review of comments in response to the interim final rule.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) requires preparation of an initial regulatory flexibility analysis for any rule that by law must be proposed for public comment. As discussed previously, DOE has determined that prior notice and opportunity for public comment is unnecessary under the APA. Because a notice of proposed rulemaking is not required for this action pursuant to 5 U.S.C. 553, or any other law, no regulatory flexibility analysis has been prepared for this interim final rule. See 5 U.S.C. 601(2), 603(a).

This regulatory action does not impose any additional reporting or recordkeeping requirements subject to approval under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

DOE has analyzed this final rule in accordance with NEPA and DOE's NEPA implementing regulations (10 CFR part 1021). DOE has determined that this final rule is covered under the categorical exclusion located at 10 CFR part 1021, subpart D, appendix A, Categorical Exclusion A5 because this final rule revises existing regulations at 10 CFR part 603. The changes update and clarify OT regulations. DOE has considered whether this action would result in extraordinary circumstances that would warrant preparation of an Environmental Assessment or EIS and has determined that no such extraordinary circumstances exist. Therefore, DOE has determined that this rulemaking does not require an Environmental Assessment or an EIS.

Executive Order 13132, “Federalism”, 64 FR 43255 (August 4, 1999), imposes certain requirements on agencies formulating and implementing policies or regulations that preempt state law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. DOE has examined the IFR and has determined that it does not preempt State law and does 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. No further action is required by Executive Order 13132.

With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (February 7, 1996), imposes on executive agencies the general duty to adhere to the following requirements: (1) eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; (3) provide a clear legal standard for affected conduct rather than a general standard; and (4) promote simplification and burden reduction. Section 3(b) of Executive Order 12988 specifically requires that executive agencies make every reasonable effort to ensure that the regulation: (1) clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the United States Attorney General. Section 3(c) of Executive Order 12988 requires executive agencies to review regulations in light of applicable standards in sections 3(a) and 3(b) to determine whether they are met or if it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this IFR meets the relevant standards of Executive Order 12988.

Under Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments,” 65 FR 67249 (Nov. 6, 2000), DOE may not issue a discretionary rule that has Tribal implications or that imposes substantial direct compliance costs on Indian Tribal governments. DOE has determined that this IFR will not have such effects and has concluded that Executive Order 13175 does not apply to this IFR.

The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally requires Federal agencies to examine closely the impacts of regulatory actions on State, local, Tribal governments. Subsection 101(5) of title I of that law defines a Federal intergovernmental mandate to include a regulation that would impose upon State, local, or Tribal governments an enforceable duty, except a condition of Federal assistance or a duty arising from participating in a voluntary Federal program. Title II of that law requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments, in the aggregate, or the private sector, other than to the extent such actions merely incorporate requirements specifically set forth in a statute. Section 202 of the title requires a Federal agency to perform a detailed assessment of the anticipated costs and benefits of any rule that includes a Federal mandate which may result in costs to State, local, or Tribal governments, or the private sector, of $100 million or more in any one year (adjusted annually for inflation). 2 U.S.C. 1532(a) and (b). Section 204 of that title requires each agency that proposed a rule containing a significant Federal intergovernmental mandate to develop an effective process for obtaining meaningful and timely input from elected officers of State, local, and Tribal governments. 2 U.S.C. 1534. This IFR amends the TIA regulations to provide the guidance and procedures to awarding and administering Other Transaction agreements. The IFR does not result in the expenditure by State, local, and Tribal governments, in aggregate, or by the private sector of $100 million or more in any one year. Accordingly, no assessment or analysis is required under the Unfunded Mandates Reform Act of 1995.

The Treasury and General Government Appropriations Act, 2001, 44 U.S.C. 3516 note, provides for Federal agencies to review most disseminations of information to the public under implementing guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002).

DOE has reviewed the IFR under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.

Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to the OMB a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that: (1) is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.

This IFR does not have a significant adverse effect on the supply, distribution, or use of energy and is therefore not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects.

As required by 5 U.S.C. 801, DOE will submit to Congress a report regarding the issuance of this interim final rule prior to the effective date set forth at the outset of this interim final rule. The report will state that it has been determined that this interim final rule is not a “major rule” as defined by 5 U.S.C. 804(2).

The Secretary of Energy has approved publication of this Interim final rule; request for comments.

This document of the Department of Energy was signed on December 16, 2024, by William J. Quigley, Deputy Associate Administrator, Partnership and Acquisition Services, National Nuclear Security Administration, pursuant to delegated authority from the Administrator, National Nuclear Security Administration, and Berta L. Schreiber, Director, Office of Acquisition Management, Department of Energy, pursuant to delegated authority from the Secretary of Energy. These documents with the original signature and date are maintained by DOE/NNSA. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

For the reasons stated in the preamble, DOE amends 2 CFR chapter IX and 10 CFR chapter II as follows:

The USDA RHS offers a variety of programs to build or improve housing and essential community facilities in rural areas. RHS offers loans, grants, and loan guarantees for single- and multifamily housing, childcare centers, fire and police stations, hospitals, libraries, nursing homes, schools, first responder vehicles and equipment, and housing for farm laborers. The Agency also provides technical assistance loans and grants in partnership with non-profit organizations, Indian tribes, state and federal government agencies, and local communities.

Well built, affordable housing is essential to the vitality of communities in rural America. RD Single Family Housing (SFH) Programs give families and individuals the opportunity to buy, build, or repair affordable homes located in rural America. Eligibility for these loans, loan guarantees, and grants is based on income and varies according to the average median income for each area.

RHS administers the following SFH Programs under 7 CFR parts 3550 and 3555 authorized by section 502 of the Housing Act of 1949, as amended, (42 U.S.C. 1472):

☐ Section 502 Direct Loan Program assists low- and very low-income applicants who currently do not own adequate housing and cannot obtain other credit, the opportunity to acquire, build, rehabilitate, improve, or relocate dwellings in rural areas.

☐ Section 502 Guaranteed Loan Program assists low- and moderate-income applicants the opportunity to acquire, build, rehabilitate, improve, or relocate dwellings in rural areas.

RHS published a proposed rule on August 16, 2023 (88 FR 55601) to amend the current regulations for the Single-Family Housing Direct and Guaranteed Programs found in 7 CFR part 3550 and 3555, respectfully. The Agency received comments from 35 respondents, including mortgage lenders, real estate agents, brokers, associations, and other interested parties. Specific public comments are addressed below:

Public Comment: Twenty-seven respondents replied favorably to the proposed rule with some indicating that manufactured homes are affordable housing options for homebuyers, will assist in alleviating the nation's housing supply shortages in response to the growing demand for low-price housing, provide a better housing affordability option relative to site-built homes, and the improved quality and durability of these type homes has increased the chances of homeownership for lower-income families.

Agency's Response: The Agency appreciates the commenters' support and has determined that no action is required.

Public Comment: Three respondents expressed support of the proposed rule but suggested that the program be expanded to include all states and include manufactured homes built after June 15, 1976, to align with the requirements set forth by other agencies and government-sponsored enterprises such as, FHA, VA, Fannie Mae, and Freddie Mac.

Agency's Response: The Agency acknowledges the recommendation and would like to note that the final rule will expand the program for financing of eligible existing manufactured housing to include all states. However, the consideration of year in which a manufactured home must be built to for eligibility takes into account the Manufactured Housing Improvement Act of 2000 which set forth Federal guidelines that all factory-built housing must meet and further amendments to the Federal Manufactured Home Construction and Safety Standards (FMHCSS). The January 1, 2006, construction on or after date was initially selected for the pilot period. This final rule changes the regulatory restrictions for the SFH Section 502 Direct Loan Program and the SFH Guaranteed Loan Program and allows the programs to lend on existing manufactured homes built in conformance with FMHCSS standards, on or after a date, as determined by the Agency, considering factors such as industry standards and practices.

Public Comment: Two respondents expressed support for the proposed rule but suggested that the existing manufactured construction year date be expanded for homes built prior to 2006.

Agency's Response: The Agency appreciates the commenters' responses. The January 1, 2006, construction on or after date was initially selected for the pilot period. This final rule revises the regulation to allow the programs to lend on existing manufactured homes built in conformance with FMHCSS standards, on or after a date, as determined by the Agency, with consideration of factors such as industry standards and practices. Existing manufactured homes financed through the section 502 Direct and Guaranteed programs cannot be built on or after a date as determined by the Agency, as identified on the HUD data plate, at the time of loan closing.

Public Comment: One respondent expressed support of the proposal and provided additional responses to the questions posed in the proposed rule. The respondent wanted to know why USDA was restricting eligibility to those homes built on or after January 1, 2006, if VA and FHA allow for manufactured homes built on or after June 15, 1976.

Agency's Response: The Agency acknowledges the recommendation. The January 1, 2006, construction on or after date was initially selected for the pilot period. This final rule revises the regulatory restrictions and allows the section 502 Direct and Guaranteed programs to lend on existing manufactured homes built in conformance with FMHCSS standards, on or after a date, as determined by the Agency, considering factors such as industry standards and practices.

Public Comment: One respondent expressed support of the proposed rule but believed that the handbook should be updated to clarify that the home must meet HUD handbooks and needs to be on piers and strapped down in accordance with HUD Standards for foundations which would be consistent with FHA guidelines.

Agency's Response: The Agency acknowledges the recommendation. RHS will require all existing manufactured homes to have been constructed and placed on a permanent foundation in accordance with 7 CFR part 1924, subpart A, exhibit J, as applicable to the Direct Program, and the FMHCSS, established by HUD and found in 24 CFR part 3280 for both Direct and Guaranteed programs.

Public Comment: One respondent replied with concerns of the proposal and believed that although there is a need for affordable housing, adding manufactured homes as an asset class would reduce the opportunity for families to build generational wealth and increase government risk due average life expectancy of a manufactured home.

Agency's Response: The Agency appreciates the commenter's response. The regulatory requirement in 7 CFR 3550.67, applicable to the 502 Direct loan program, requires that the remaining economic life of the property based on the appraisal must meet or exceed the loan term. For both the Direct and Guaranteed programs, the maximum term for financing manufactured housing cannot exceed 30 years. Once rulemaking is final, RHS will continue to require that existing manufactured homes be built in conformance with the Manufactured Housing Act of 2000 and FMHCSS, which require higher construction standards such as quality building materials, structural design provisions, and installation improvements, thus increasing the life expectancy and value.

This final rule will amend these program regulations to implement changes to permit the purchase of existing manufactured homes [(§§ 3550.52(e)(1), 3550.73(b)(1), 3555.208(a)(3), 3555.208(b)(3), and 3555.208(e)], allow the Agency to accept a lease with an unexpired term that is at least two years longer than the loan term for new energy efficient manufactured and modular home financing in land-lease communities operating on a nonprofit basis and Tribal lands [§§ 3550.58(b) and 3555.203(b)(3)], and amend the definition of a “New dwelling” for a manufactured home (§ 3555.10). For direct loans only, remove the administrative requirements from the regulations for review and approval of applications from manufactured housing dealers [§ 3550.73(c)] and revise the definition of “Manufactured home” to remove reference to RHS thermal performance standards (§ 3550.10).

This final rule will implement the changes as published in the proposed rule (88 FR 55601; August 16, 2023). The requirements of the proposed rule for 7 CFR parts 3550 and 3555 as follows:

Update the definition of manufactured home under § 3550.10, by removing reference to “RHS Thermal Performance Standards” for 502 Direct loans. SFH is exempt from RHS Thermal Performance Standards compliance.

1. Remove paragraph (c) from § 3550.73 which requires Agency approval of manufactured housing dealers for Direct loans;

2. Update the definition of a new dwelling for a manufactured home under § 3555.10, by removing reference to “purchase contract” and replacing the text with “date of loan closing” for 502 Guaranteed loans.

3. Update §§ 3550.52(e)(1), 3550.73(b)(1), add new paragraph (a)(3) to § 3555.208, update §§ 3555.208(b)(3) and 3555.208(e) to clarify that borrowers are allowed, under the Direct and Guaranteed loan programs, to purchase existing manufactured homes constructed in conformance with FMHCSS, on or after a date, as determined by the Agency.

4. Update §§ 3550.58(b) and 3555.203(b)(3) so that, for the direct and guaranteed loan programs, the Agency will accept a land-lease with an unexpired term that is at least two years longer than the mortgage term for new energy efficient manufactured and modular home financing in Tribal and land-lease communities operating on a nonprofit basis.

Section 510(k) of title V the Housing Act of 1949 [42 U.S.C. 1480(k)], as amended, authorizes the Secretary of the Department of Agriculture to promulgate rules and regulations as deemed necessary to carry out the purpose of that title; and implemented under 7 CFR parts 3550 and 3555.

These programs are not subject to the requirements of Executive Order 12372, “Intergovernmental Review of Federal Programs,” as implemented under the USDA's regulations at 2 CFR part 415, subpart C.

Executive Orders 12866 (Regulatory Planning and Review) and 13563 (Improving Regulation and Regulatory Review) direct agencies to assess the costs and benefits of available regulatory alternatives and, if a 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, of reducing costs, of harmonizing rules, and promoting flexibility. This final rule has been determined to be non-significant and, therefore, was not reviewed by the Office of Management and Budget (OMB) under Executive Order 12866.

This final rule has been reviewed under Executive Order 12988. In accordance with this rule: unless otherwise specifically provided, all State and local laws that conflict with this rule will be preempted; no retroactive effect will be given to this rule except as specifically prescribed in the rule; and administrative proceedings of the National Appeals Division of the Department of Agriculture (7 CFR part 11) must be exhausted before suing in court that challenges action taken under this rule.

The policies contained in this final rule do not have any substantial direct effect on States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. This rule does not impose substantial direct compliance costs on state and local governments; therefore, consultation with States is not required.

This Executive order imposes requirements on RHS in the development of regulatory policies that have tribal implications or preempt tribal laws. RHS has determined that this final rule does not have a substantial direct effect on one or more Indian tribe(s) or on either the relationship or the distribution of powers and responsibilities between the Federal Government and Indian tribes. Thus, this rule is not subject to the requirements of Executive Order 13175. If tribal leaders are interested in consulting with RHS on this rule, they are encouraged to contact USDA's Office of Tribal Relations or RD's Tribal Coordinator at: AIAN@usda.gov to request such a consultation.

Title II of the UMRA, Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal Governments and on the private sector. Under section 202 of the UMRA, the Agency generally must prepare a written statement, including cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, or Tribal Governments, in the aggregate, or to the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, section 205 of the UMRA generally requires the Agency to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, more cost-effective, or least burdensome alternative that achieves the objectives of the rule.

This final rule contains no Federal mandates (under the regulatory provisions of title II of the UMRA) for state, local, and tribal Governments or for the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of the UMRA.

In accordance with the National Environmental Policy Act of 1969, Public Law 91-190, this document has been reviewed in accordance with 7 CFR part 1970 (“Environmental Policies and Procedures”). The Agency has determined that: This action meets the criteria established in 7 CFR 1970.53(f); no extraordinary circumstances exist; and the action is not “connected” to other actions with potentially significant impacts, is not considered a “cumulative action” and is not precluded by 40 CFR 1506.1. Therefore, the Agency has determined that the action does not have a significant effect on the human environment, and therefore neither an Environmental Assessment nor an Environmental Impact Statement is required.

The Administrative Pay-As-You-Go Act of 2023 (Act) (see Fiscal Responsibility Act of 2023, Pub. L. 118-5, 137 Stat. 31, div. B, title III), requires the U.S. Government Accountability Office (GAO) to assess agency compliance with the Act, which establishes requirements for administrative actions that affect direct spending, in GAO's major rule reports.

This final rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act (5 U.S.C. 601-612). The undersigned has determined and certified by signature on this document that this proposed rule will not have a significant economic impact on a substantial number of small entities since this rulemaking action does not involve a new or expanded program nor does it require any more action on the part of a small business than required of a large entity.

Rural Development has reviewed this final rule in accordance with USDA Regulation 4300-004, Civil Rights Impact Analysis,” to identify any major civil rights impacts the proposed rule might have on program participants on the basis of age, race, color, national origin, sex, disability, marital or familial status. After review and analysis of the final rule and available data, it has been determined that implementation of the final rule will not adversely or disproportionately impact very low-, low- and moderate-income populations, minority populations, women, Indian Tribes, or persons with disability by virtue of their race, color, national origin, sex, age, disability, or marital or familial status. No major civil rights impact is likely to result from this final rule.

The programs affected by this regulation are listed in the Assistance Listing Catalog under number 10.410, Very Low to Moderate Income Housing Loans (section 502 Rural Housing Loans), and number 10.417, Very Low-Income Housing Repair Loans and Grants (specifically the section 504 direct loans and grants).

This final rule contains no new reporting or recordkeeping burden under OMB Control Number 0575-0172 that would require approval under the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35).

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

In accordance with Federal civil rights laws and U.S. Department of Agriculture (USDA) civil rights regulations and policies, the USDA, its Mission Areas, agencies, staff offices, employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.

Program information may be made available in languages other than English. Persons with disabilities who require alternative means of communication to obtain program information ( e.g., Braille, large print, audiotape, American Sign Language) should contact the responsible Mission Area, agency, staff office; or the Federal Relay Service at (800) 877-8339.

To file a program discrimination complaint, a complainant should complete a Form AD-3027, USDA Program Discrimination Complaint Form, which can be obtained online at https://www.usda.gov/sites/default/files/documents/ad-3027.pdf, from any USDA office, by calling (866) 632-9992, or by writing a letter addressed to USDA. The letter must contain the complainant's name, address, telephone number, and a written description of the alleged discriminatory action in sufficient detail to inform the Assistant Secretary for Civil Rights (ASCR) about the nature and date of an alleged civil rights violation. The completed AD-3027 form or letter must be submitted to USDA by:

2. Fax: (833) 256-1665 or (202) 690-7442; or

3. Email: program.intake@usda.gov .

USDA is an equal opportunity provider, employer, and lender.

For the reasons discussed in the preamble, the Agency is amending 7 CFR parts 3550 and 3555 as follows:

Please refer to Docket ID NRC-2024-0180 when contacting the NRC about the availability of information for this action. You may obtain publicly available information related to this action by any of the following methods:

• Federal Rulemaking website: Go to https://www.regulations.gov and search for Docket ID NRC-2024-0180. Address questions about NRC dockets to Helen Chang, telephone: 301-415-3228, email: Helen.Chang@nrc.gov. For technical questions contact the individuals listed in the FOR FURTHER INFORMATION CONTACT section of this document.

• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly available documents online in the ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, select “Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to PDR.Resource@nrc.gov. For the convenience of the reader, instructions about obtaining materials referenced in this document are provided in the “Availability of Documents” section.

• NRC's PDR: The PDR, where you may examine and order copies of publicly available documents, is open by appointment. To make an appointment to visit the PDR, please send an email to PDR.Resource@nrc.gov or call 1-800-397-4209 or 301-415-4737, between 8 a.m. and 4 p.m. eastern time, Monday through Friday, except Federal holidays.

The NRC encourages electronic comment submission through the Federal rulemaking website ( https://www.regulations.gov ). Please include Docket ID NRC-2024-0180 in your comment submission.

The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at https://www.regulations.gov as well as enter the comment submissions into ADAMS. The NRC does not routinely edit comment submissions to remove identifying or contact information.

If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.

This rule is limited to the changes contained in Amendment No. 14 and revisions to Amendment Nos. 0 through 13 to Certificate of Compliance No. 1031 and does not include other aspects of the NAC International, Inc. MAGNASTOR® Storage System design. The NRC is using the “direct final rule procedure” for this rule because it represents a limited and routine change to an existing certificate of compliance that is expected to be non-controversial. Adequate protection of public health and safety continues to be reasonably assured. The amendment to the rule will become effective on March 19, 2025. However, if the NRC receives any significant adverse comment on this direct final rule by February 3, 2025, then the NRC will publish a document that withdraws this action and will subsequently address the comments received in a final rule as a response to the companion proposed rule published in the Proposed Rules section of this issue of the Federal Register or as otherwise appropriate. In general, absent significant modifications to the proposed revisions requiring republication, the NRC will not initiate a second comment period on this action.

A significant adverse comment is a comment where the commenter explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. A comment is adverse and significant if:

(1) The comment opposes the rule and provides a reason sufficient to require a substantive response in a notice-and-comment process. For example, a substantive response is required when:

(a) The comment causes the NRC to reevaluate (or reconsider) its position or conduct additional analysis;

(b) The comment raises an issue serious enough to warrant a substantive response to clarify or complete the record; or

(c) The comment raises a relevant issue that was not previously addressed or considered by the NRC.

(2) The comment proposes a change or an addition to the rule, and it is apparent that the rule would be ineffective or unacceptable without incorporation of the change or addition.

(3) The comment causes the NRC to make a change (other than editorial) to the rule, certificate of compliance, or technical specifications.

Section 218(a) of the Nuclear Waste Policy Act of 1982, as amended, requires that “[t]he Secretary [of the Department of Energy] shall establish a demonstration program, in cooperation with the private sector, for the dry storage of spent nuclear fuel at civilian nuclear power reactor sites, with the objective of establishing one or more technologies that the [Nuclear Regulatory] Commission may, by rule, approve for use at the sites of civilian nuclear power reactors without, to the maximum extent practicable, the need for additional site-specific approvals by the Commission.” Section 133 of the Nuclear Waste Policy Act states, in part, that “[t]he Commission shall, by rule, establish procedures for the licensing of any technology approved by the Commission under Section 219(a) [sic: 218(a)] for use at the site of any civilian nuclear power reactor.”

To implement this mandate, the Commission approved dry storage of spent nuclear fuel in NRC-approved casks under a general license by publishing a final rule that added a new subpart K in part 72 of title 10 of the Code of Federal Regulations (10 CFR) entitled “General License for Storage of Spent Fuel at Power Reactor Sites” (55 FR 29181; July 18, 1990). This rule also established a new subpart L in 10 CFR part 72 entitled “Approval of Spent Fuel Storage Casks,” which contains procedures and criteria for obtaining NRC approval of spent fuel storage cask designs. The NRC subsequently issued a final rule on November 21, 2008 (73 FR 70587), that approved the NAC International, Inc. MAGNASTOR® Storage System design and added it to the list of NRC-approved cask designs in § 72.214 as Certificate of Compliance No. 1031.

On July 24, 2023, NAC International, Inc. submitted a request to the NRC to amend Certificate of Compliance No. 1031. NAC International, Inc. supplemented its request on June 26, 2024, October 18, 2023, and August 6, 2024. Amendment No. 14 and revisions to Amendment Nos. 0 through 13 revise the certificate of compliance to add a revised method of evaluation for the non-mechanistic tipover accident, clarify in the technical specifications that damaged missing grid spacers only apply to pressurized-water reactor fuel assembles, clarify inlet and outlet vent blockage and surveillance requirements in limiting condition for operation 3.1.2 in Appendix A to the certificate of compliance and associated technical specification bases, and remove the reference to Type II Portland cement in the description of the certificate of compliance. The NRC is also correcting several typographical errors in: (1) tables B2-10c and B2-10d in Revision 1 to Amendment Nos. 11 through 13 and (2) the section numbering in Appendix B to Amendment No. 14 and Revision 1 to Amendment No. 13. The changes to the aforementioned documents are identified with revisions bars in the margin of each document.

As documented in the preliminary safety evaluation report, the NRC performed a safety evaluation of the proposed certificate of compliance amendment request. The NRC determined that this amendment does not reflect a significant change in design or fabrication of the cask. Specifically, the NRC determined that the design of the cask would continue to maintain confinement, shielding, and criticality control in the event of each evaluated accident condition. In addition, any resulting occupational exposure or offsite dose rates from the implementation of Amendment No. 14 and revisions to Amendment Nos. 0 through 13 would remain well within the limits specified by 10 CFR part 20, “Standards for Protection Against Radiation.” Thus, the NRC found there will be no significant change in the types or amounts of any effluent released, no significant increase in the individual or cumulative radiation exposure, and no significant increase in the potential for or consequences from radiological accidents.

The NRC staff determined that the amended NAC International, Inc. MAGNASTOR® Storage System cask design, when used under the conditions specified in the certificate of compliance, the technical specifications, and the NRC's regulations, will meet the requirements of 10 CFR part 72; therefore, adequate protection of public health and safety will continue to be reasonably assured. When this direct final rule becomes effective, persons who hold a general license under § 72.210 may, consistent with the license conditions under § 72.212, load spent nuclear fuel into NAC International, Inc. MAGNASTOR® Storage System casks that meet the criteria of the revised Amendment Nos. 0 through 13 and new Amendment No. 14 to Certificate of Compliance No. 1031.

The National Technology Transfer and Advancement Act of 1995 (Pub. L. 104-113) requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this direct final rule, the NRC revises the NAC International, Inc. MAGNASTOR® Storage Cask System design listed in § 72.214, “List of approved spent fuel storage casks.” This action does not constitute the establishment of a standard that contains generally applicable requirements.

Under the “Agreement State Program Policy Statement” approved by the Commission on October 2, 2017, and published in the Federal Register on October 18, 2017 (82 FR 48535), this rule is classified as Compatibility Category NRC-Areas of Exclusive NRC Regulatory Authority. The NRC program elements in this category are those that relate directly to areas of regulation reserved to the NRC by the Atomic Energy Act of 1954, as amended, or the provisions of 10 CFR chapter I. Therefore, compatibility is not required for program elements in this category.

The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, and well-organized manner. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31885).

Under the National Environmental Policy Act of 1969, as amended, and the NRC's regulations in 10 CFR part 51, “Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions,” the NRC has determined that this direct final rule, if adopted, would not be a major Federal action significantly affecting the quality of the human environment and, therefore, an environmental impact statement is not required. The NRC has made a finding of no significant impact on the basis of this environmental assessment.

The action is to amend § 72.214 to revise the NAC International, Inc. MAGNASTOR® Storage System listing within the “List of approved spent fuel storage casks” to include Amendment No. 14 and to include revisions to Amendment Nos. 0 through 13 to Certificate of Compliance No. 1031.

This direct final rule amends the certificate of compliance for the NAC International, Inc. MAGNASTOR® Storage System design within the list of approved spent fuel storage casks to allow power reactor licensees to store spent fuel at reactor sites in casks with the approved modifications under a general license. Specifically, Amendment No. 14 and revisions to Amendment Nos. 0 through 13 revise the certificate of compliance to add a revised method of evaluation for the non-mechanistic tipover accident, clarify in the technical specifications that damaged missing grid spacers only apply to pressurized-water reactor fuel assembles, clarify inlet and outlet vent blockage and surveillance requirements in limiting condition for operation 3.1.2 in Appendix A to the certificate of compliance and associated technical specification bases, and remove the reference to Type II Portland cement in the description of the certificate of compliance.

On July 18,1990 (55 FR 29181), the NRC issued an amendment to 10 CFR part 72 to provide for the storage of spent fuel under a general license in cask designs approved by the NRC. The potential environmental impact of using NRC-approved storage casks was analyzed in the environmental assessment for the 1990 final rule. The environmental assessment for this Amendment No. 14 and revisions to Amendment Nos. 0 through 13 tiers off of the environmental assessment for the July 18, 1990, final rule. Tiering on past environmental assessments is a standard process under the National Environmental Policy Act of 1969, as amended.

The NAC International, Inc. MAGNASTOR® Storage System is designed to mitigate the effects of design basis accidents that could occur during storage. Design basis accidents account for human-induced events and the most severe natural phenomena reported for the site and surrounding area. Postulated accidents analyzed for an independent spent fuel storage installation, the type of facility at which a holder of a power reactor operating license would store spent fuel in casks in accordance with 10 CFR part 72, can include tornado winds and tornado-generated missiles, a design basis earthquake, a design basis flood, an accidental cask drop, lightning effects, fire, explosions, and other incidents.

This amendment does not reflect a significant change in design or fabrication of the cask. Because there are no significant design or process changes, any resulting occupational exposure or offsite dose rates from the implementation of Amendment No. 14 and revisions to Amendment Nos. 0 through 13 would remain well within the 10 CFR part 20 limits. The NRC has also determined that the design of the cask as modified by this rule would maintain confinement, shielding, and criticality control in the event of an accident. Therefore, the proposed changes will not result in any radiological or non-radiological environmental impacts that significantly differ from the environmental impacts evaluated in the environmental assessment supporting the July 18, 1990, final rule. There will be no significant change in the types or significant revisions in the amounts of any effluent released, no significant increase in the individual or cumulative radiation exposures, and no significant increase in the potential for, or consequences from, radiological accidents. The NRC documented its safety findings in the preliminary safety evaluation report.

The alternative to this action is to deny approval of Amendment No. 14 and revisions to Amendment Nos. 0 through 13 and not issue the direct final rule. Consequently, any 10 CFR part 72 general licensee that seeks to load spent nuclear fuel into the NAC International, Inc. MAGNASTOR® Storage System in accordance with the changes described in proposed Amendment No. 14 and revisions to Amendment Nos. 0 through 13 would have to request an exemption from the requirements of §§ 72.212 and 72.214. Under this alternative, interested licensees would have to prepare, and the NRC would have to review, a separate exemption request, thereby increasing the administrative burden upon the NRC and the costs to each licensee. The environmental impacts would be the same as the proposed action.

Approval of Amendment No. 14 and revisions to Amendment Nos. 0 through 13 to Certificate of Compliance No. 1031 would result in no irreversible and irretrievable commitments of Federal resources.

No agencies or persons outside the NRC were contacted in connection with the preparation of this environmental assessment.

The environmental impacts of the action have been reviewed under the requirements in the National Environmental Policy Act of 1969, as amended, and the NRC's regulations in subpart A of 10 CFR part 51, “Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions.” Based on the foregoing environmental assessment, the NRC concludes that this direct final rule, “List of Approved Spent Fuel Storage Casks: NAC International, Inc. MAGNASTOR® Storage System Certificate of Compliance No. 1031, Amendment No. 14 and Revisions to Amendment Nos. 0 through 13,” will not have a significant effect on the human environment. Therefore, the NRC has determined that an environmental impact statement is not necessary for this direct final rule.

This direct final rule does not contain any new or amended collections of information subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). Existing collections of information were approved by the Office of Management and Budget, approval number 3150-0132.

The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection requirement unless the requesting document displays a currently valid Office of Management and Budget control number.

Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the NRC certifies that this direct final rule will not, if issued, have a significant economic impact on a substantial number of small entities. This direct final rule affects only nuclear power plant licensees and NAC International, Inc. These entities do not fall within the scope of the definition of small entities set forth in the Regulatory Flexibility Act or the size standards established by the NRC (§ 2.810).

On July 18, 1990 (55 FR 29181), the NRC issued an amendment to 10 CFR part 72 to provide for the storage of spent nuclear fuel under a general license in cask designs approved by the NRC. Any nuclear power reactor licensee can use NRC-approved cask designs to store spent nuclear fuel if (1) it notifies the NRC in advance; (2) the spent fuel is stored under the conditions specified in the cask's certificate of compliance; and (3) the conditions of the general license are met. A list of NRC-approved cask designs is contained in § 72.214. On November 21, 2008 (73 FR 70587), the NRC issued an amendment to 10 CFR part 72 that approved the NAC International, Inc. MAGNASTOR® Storage System design by adding it to the list of NRC-approved cask designs in § 72.214.

On July 24, 2023, and as supplemented on June 26, 2024, October 18, 2023, and August 6, 2024, NAC International, Inc. submitted a request to amend Certificate of Compliance No. 1031 as described in Section IV, “Discussion of Changes,” of this document.

The alternative to this action is to withhold approval of Amendment No. 14 and revisions to Amendment Nos. 0 through 13 and to require any 10 CFR part 72 general licensee seeking to load spent nuclear fuel into the NAC International, Inc. MAGNASTOR® Storage System under the changes described in Amendment No. 14 and revisions to Amendment Nos. 0 through 13 to request an exemption from the requirements of § 72.212 and § 72.214. Under this alternative, each interested 10 CFR part 72 licensee would have to prepare, and the NRC would have to review, a separate exemption request, thereby increasing the administrative burden upon the NRC and the costs to each licensee.

Approval of this direct final rule is consistent with previous NRC actions. Further, as documented in the preliminary safety evaluation report and environmental assessment, this direct final rule will have no adverse effect on public health and safety or the environment. This direct final rule has no significant identifiable impact or benefit on other government agencies. Based on this regulatory analysis, the NRC concludes that the requirements of this direct final rule are commensurate with the NRC's responsibilities for public health and safety and the common defense and security. No other available alternative is believed to be as satisfactory; therefore, this action is recommended.

The NRC has determined that the regulations in 10 CFR 72.62, “Backfitting,” do not apply to this direct final rule. This direct final rule revises Certificate of Compliance No. 1031 for the NAC International, Inc. MAGNASTOR® Storage System, as currently listed in § 72.214. The revision consists of the changes in Amendment No. 14 and revisions to Amendment Nos. 0 through 13 previously described, as set forth in the revised certificate of compliance and technical specifications.

Amendment No. 14 to Certificate of Compliance No. 1031 for the NAC International, Inc. MAGNASTOR® Storage System was initiated by NAC International, Inc. and was not submitted in response to new NRC requirements, or an NRC request for amendment. Amendment No. 14 applies only to new casks fabricated and used under Amendment No. 14. These changes do not affect existing users of the NAC International, Inc. MAGNASTOR® Storage System, and the current Amendment No. 13 continues to be effective for existing users. While current users of this storage system may comply with the new requirements in Amendment No. 14, this would be a voluntary decision on the part of current users. For these reasons, Amendment No. 14 to Certificate of Compliance No. 1031 does not constitute backfitting under § 72.62 or § 50.109(a)(1), or otherwise represent an inconsistency with the issue finality provisions applicable to combined licenses in 10 CFR part 52.

The general licensees using Amendment Nos. 0 through 13 that are being revised are required to meet the conditions of the revised certificates of compliance. The NRC added a condition to the revised certificates of compliance that require the general licensee to implement the revised certificates of compliance within 6 months and perform written evaluations in accordance with § 72.212(b)(5), which establish that the cask will conform to the terms, conditions, and specifications of the revised certificates of compliance. The 6-month timeframe in the condition is considered a standard timeframe for implementation, consistent with the information in Regulatory Issue Summary 2017-05, “Administration of 10 CFR part 72 Certificate of Compliance Corrections and Revisions.”

NAC International, Inc. has manufactured casks under the existing Certificate of Compliance No. 1031, Amendment Nos. 0 through 13, that are being revised by this final rule. As the vendor, NAC International, Inc. is not within the scope of the backfitting provisions in § 72.62. Under § 72.62, general licensees are entities that are within the scope of the backfitting regulations. However, according to NAC International, Inc., no general licensees have purchased the MAGNASTOR® Storage System under Certificate of Compliance No. 1031, Amendment Nos. 0 through 5, Amendment No. 8, and Amendment Nos. 10 through 12. In addition, by letter dated October 18, 2023, NAC International, Inc. provided letters from all its users for the MAGNASTOR® Storage System. None of the users in the letters are using Amendment Nos. 0 through 5, Amendment No. 8, and Amendment Nos. 10 through 12. Therefore, because Certificate of Compliance No. 1031, Amendment Nos. 0 through 5, Amendment No. 8, and Amendment Nos. 10 through 12 are not in use by a licensee and no licensee has contracted with NAC International, Inc. to utilize storage casks for these amendments, the changes in the revision to Certificate of Compliance No. 1031, Amendment Nos. 0 through 5, Amendment No. 8, and Amendment Nos. 10 through 12, which are approved in this direct final rule, do not fall within the definition of backfitting under § 72.62.

Dominion Energy Kewaunee at the Kewaunee independent spent fuel storage installation and ZionSolutions at its independent spent fuel storage installation are the two general licensees using revision 1 to Amendment No. 6 that could be affected by the issuance of revision 2 to Amendment No. 6. In a letter to NAC International, Inc., Dominion Energy Kewaunee stated that it would voluntarily adopt revision 2 to Amendment No. 6. Zion Solutions also stated in a letter that it intends to implement the revised certificate after its issuance. Because both licensees voluntarily intend to implement the revision, the issuance of revision 2 to Amendment No. 6 does not fall within the definition of backfitting under § 72.62.

Arizona Public Service Company at the Palo Verde independent spent fuel storage installation and Duke Energy at the Catawba and McGuire independent spent fuel storage installations are the general licensees using revision 1 to Amendment No. 7 that could be affected by the issuance of revision 2 to Amendment No. 7. In their letters to NAC International, Inc., Arizona Public Service Company and Duke Energy stated that they intend to implement revision 2 to Amendment No. 7. Therefore, because the licensees voluntarily intend to implement the revision, issuance of revision 2 to Amendment No. 7 does not fall within the definition of backfitting under § 72.62.

Constellation Energy Generation at its Three Mile Island Unit 1 independent spent fuel storage installation is the only general licensee using revision 1 to Amendment No. 9 that could be affected by the issuance of revision 2 to Amendment No. 9. In its letter to NAC International, Inc., Constellation Energy Generation stated that it intends to implement revision 2 to Amendment No. 9 in a timely manner after NRC approval of the revision has been received. Therefore, because the licensee voluntarily intends to implement the revision, issuance of revision 2 to Amendment No. 9 does not fall within the definition of backfitting under § 72.62.

Three Mile Island Nuclear Station, Unit 2 Solutions contracted with NAC International, Inc. to utilize storage casks using Amendment No. 13 and could be affected by the issuance of revision 1 to Amendment No. 13. In its letter to NAC International, Inc., Three Mile Island Nuclear Station, Unit 2 Solutions stated that it intends to implement the revised certificate for Amendment No. 13 for MAGNASTOR® Storage System at the Three Mile Island Nuclear Station, Unit 2, independent spent fuel storage installation after NRC approval of the revision. Therefore, because Three Mile Island Nuclear Station, Unit 2 Solutions voluntarily intends to implement the revision, issuance of revision 1 to Amendment No. 13 does not fall within the definition of backfitting under § 72.62.

This direct final rule is not a rule as defined in the Congressional Review Act.

The documents identified in the following table are available to interested persons as indicated.

The Federal Civil Penalties Inflation Adjustment Act of 1990 (the “Inflation Adjustment Act”), 1 as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the “2015 Act”), 2 requires Federal agencies, including the Commission, to adjust for inflation the civil monetary penalties within their jurisdiction according to prescribed formulas. A civil monetary penalty is “any penalty, fine, or other sanction” that (1) “is for a specific monetary amount” or “has a maximum amount” under Federal law; and (2) that a Federal agency assesses or enforces “pursuant to an administrative proceeding or a civil action” in Federal court. 3 Under the Federal Election Campaign Act, 52 U.S.C. 30101-45 (“FECA”), the Commission may seek and assess civil monetary penalties for violations of FECA, the Presidential Election Campaign Fund Act, 26 U.S.C. 9001-13, and the Presidential Primary Matching Payment Account Act, 26 U.S.C. 9031-42.

The Inflation Adjustment Act requires Federal agencies to adjust their civil penalties annually, and the adjustments must take effect no later than January 15 of every year. 4 Pursuant to guidance issued by the Office of Management and Budget (“OMB”), 5 the Commission is now adjusting its civil monetary penalties for 2025. 6

The Commission must adjust for inflation its civil monetary penalties “notwithstanding Section 553” of the Administrative Procedures Act (“APA”). 7 Thus, the APA's notice-and-comment and delayed effective date requirements in 5 U.S.C. 553(b)-(d) do not apply because Congress has specifically exempted agencies from these requirements. 8

Furthermore, because the inflation adjustments made through these final rules are required by Congress and involve no Commission discretion or policy judgments, these rules do not need to be submitted to the Speaker of the United States House of Representatives or the President of the United States Senate under the Congressional Review Act, 5 U.S.C. 801 et seq. Moreover, because the APA's notice-and-comment procedures do not apply to these final rules, the Commission is not required to conduct a regulatory flexibility analysis under 5 U.S.C. 603 or 604. See 5 U.S.C. 601(2), 604(a). Nor is the Commission required to submit these revisions for congressional review under FECA. See 5 U.S.C. 30111(d)(1), (4) (providing for congressional review when Commission “prescribe[s]” a “rule of law”).

The new penalty amounts will apply to civil monetary penalties that are assessed after the date the increase takes effect, even if the associated violation predated the increase. 9

The Inflation Adjustment Act requires the Commission to annually adjust its civil monetary penalties for inflation by applying a cost-of-living-adjustment (“COLA”) ratio. 10 The COLA ratio is the percentage that the Consumer Price Index (“CPI”)  11 “for the month of October preceding the date of the adjustment” exceeds the CPI for October of the previous year. 12 To calculate the adjusted penalty, the Commission must increase the most recent civil monetary penalty amount by the COLA ratio. 13 According to the Office of Management and Budget, the COLA ratio for 2025 is 0.02598, or 2.598%; thus, to calculate the new penalties, the Commission must multiply the most recent civil monetary penalties in force by 1.02598. 14

The Commission assesses two types of civil monetary penalties that must be adjusted for inflation. First are penalties that are either negotiated by the Commission or imposed by a court for violations of FECA, the Presidential Election Campaign Fund Act, or the Presidential Primary Matching Payment Account Act. These civil monetary penalties are set forth at 11 CFR 111.24. Second are the civil monetary penalties assessed through the Commission's Administrative Fines Program for late filing or non-filing of certain reports required by FECA. See 52 U.S.C. 30109(a)(4)(C) (authorizing Administrative Fines Program), 30104(a) (requiring political committee treasurers to report receipts and disbursements within certain time periods). The penalty schedules for these civil monetary penalties are set out at 11 CFR 111.43 and 111.44.

FECA establishes the civil monetary penalties for violations of FECA and the other statutes within the Commission's jurisdiction. See 52 U.S.C. 30109(a)(5), (6), (12). Commission regulations in 11 CFR 111.24 provide the current inflation-adjusted amount for each such civil monetary penalty. To calculate the adjusted civil monetary penalty, the Commission multiplies the most recent penalty amount by the COLA ratio and rounds that figure to the nearest dollar.

The actual adjustment to each civil monetary penalty is shown in the chart below.

On October 8, 2024, the FAA published a final rule, U.S. Agents for Service on Individuals With Foreign Addresses Who Hold or Apply for Certain Certificates, Ratings, or Authorizations, 1 that will require individuals with foreign addresses and no U.S. physical address on file with the FAA who either hold or apply for certain certificates, ratings, or authorizations to designate a U.S. agent for service. This final rule revises § 3.303(d)(2) of title 14 of the Code of Federal Regulations (14 CFR) to extend the compliance date for individuals who have a foreign address and no U.S. physical address of record on file with the FAA to designate a U.S. agent for service if they apply for a certificate, rating, or authorization issued under 14 CFR part 47, 61, 63, 65, 67, or 107 from January 6, 2025, to April 2, 2025. The U.S. agent for service designation will be required to be in writing in a form and manner prescribed by the Administrator, as described in Advisory Circular 3-1, through an online system: U.S. Agent for Service System (USAS). This final rule provides additional time to establish and launch USAS to facilitate the FAA's means of accepting U.S. agent for service designations.

The FAA's authority to issue rules on aviation safety, such as the rules governing service that are referred to in this preamble and substantively promulgated in 88 FR 38001, is found in title 49 of the United States Code. Subtitle I, section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority, including the authority to issue regulations. The final rule this rulemaking amends was issued under the authority described in 49 U.S.C. 44701(a)(5), which establishes the authority of the Administrator to prescribe regulations and minimum standards for other practices, methods, and procedures the Administrator finds necessary for safety in air commerce and national security. The amended regulations herein are within the scope of that authority and are consistent with 49 U.S.C. 46103, which governs the FAA's service and provides that the FAA may effectuate service on a designated agent.

The Administrative Procedure Act (5 U.S.C. 553(b)(B)) requires an agency to conduct notice and comment rulemaking except when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. Additionally, section 553(d) permits agencies, upon a finding of good cause, to issue rules with an effective date less than 30 days from the date of publication. The FAA finds good cause under 5 U.S.C. 553(b)(B) to forgo notice and opportunity for comment and the 30-day notice requirement to implement this final rule as unnecessary.

First, as discussed herein, applicants will be unable to submit information to USAS by the January 6, 2025, deadline due to development delays associated with the USAS online portal, which were circumstances ultimately beyond the FAA's general control, and which were not fully understood until well after publication of the U.S. Agent final rule in October of 2024. When FAA became aware of a development delay, it was too late to develop an alternate means of compliance in advance of January 6, 2025, as further discussed in section IV. of this preamble below. Absent a means of compliance, FAA would be unable to issue certain certificates, ratings, and authorizations. Accordingly, the FAA finds notice and the opportunity to comment unnecessary, as public comment would not impact USAS online portal development and the FAA's preparedness to accept U.S. agent designations.

For similar reasons, the FAA finds good cause to forgo the 30 days delay of effective date requirement under 5 U.S.C. 553(d) as unnecessary. If the FAA does not effectuate this final rule before January 6, 2025, which is less than 30 days after its publication, applicants would be required to meet certain regulations without an available means of compliance and FAA would have to institute a moratorium on the issuance of certain certificates, authorizations, and ratings. Accordingly, the compliance date must be immediately extended to avoid this moratorium and inconsistency between the FAA's regulations and the practical means of compliance.

On October 8, 2024, the FAA published a final rule requiring individuals with a foreign address and no U.S. physical address of record on file with the FAA who apply or hold certificates, ratings, or authorizations under 14 CFR part 47, 61, 63, 65, 67, or 107 to designate a U.S. agent for service. 2 That final rule adopted current § 3.303(a), requiring these individuals to designate a U.S. agent for service in a form and manner prescribed by the Administrator. The FAA concurrently published Advisory Circular 3-1 prescribing the form and manner for compliance. 3 Advisory Circular 3-1 provides in Chapter 3, Paragraph 2 that individuals designating a U.S. agent for service under § 3.303 will utilize a new FAA online system, the U.S. Agent for Service System (USAS). Currently, USAS is the only form and manner of compliance prescribed by the Administrator to meet the requirement in § 3.303(a) to designate a U.S. agent for service. The final rule also adopted § 3.303(d), which provided a compliance date of January 6, 2025, for applicants of certain certificates, ratings, or authorizations and a different compliance date of July 7, 2025, for individuals who already hold certain certificates, ratings, or authorizations. However, the FAA has determined that it will not be ready to accept U.S. agent designations in USAS by January 6, 2025. Despite early and regular USAS development engagement, unforeseen and recent issues with USAS development and integration with existing FAA systems have left the agency with insufficient time to develop an alternate means to comply with § 3.303(d)(2). An alternate means of compliance would necessitate development of new guidance to the public, processing procedures for Agency employees, and a separate system to temporarily store U.S. agent designations the agency receives from applicants pending implementation of USAS. Additionally, the agency would be unable to comply with the Paperwork Reduction Act and Privacy Act requirements associated with developing an alternative means of compliance.

To avoid a moratorium on the issuance of certain certificates, authorizations, and ratings, and to ensure FAA preparedness for the collection of U.S. agent designations in USAS, it is necessary to extend the deadline for applicants to designate a U.S. agent for service in compliance with § 3.303(a). This final rule revises the compliance date in § 3.303(d)(2) from January 6, 2025, to April 2, 2025, for applicants of certain certificates, ratings, or authorizations with foreign addresses and no U.S. physical addresses to designate a U.S. agent for service. The FAA emphasizes that the compliance date to designate a U.S. agent for service in § 3.303(d)(1) for holders of any certificate, rating, or authorization with foreign addresses and no U.S. physical addresses will remain as July 7, 2025. The FAA is retaining staggered compliance dates to ensure that USAS and the Agency is not overwhelmed by submissions.

This final rule is a non-significant rule for the purposes of section 3(f) of Executive Order (E.O.) 12866, as amended by E.O. 13563 and E.O. 14094. Any impacts caused by the three-month delay will be minimal as this rule will not impose any significant costs or have impacts beyond those analyzed in the October 8, 2024, final rule.

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. The FAA submitted a report for the substantive October, 2024, final rule (89 FR 81305) and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States. This rule does not constitute a major rule as defined in 5 U.S.C. 804(2).

The Regulatory Flexibility Act (RFA) of 1980, (Pub. L. 96-354, 94 Stat. 1164 (5 U.S.C. 601-612)), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857, Mar. 29, 1996) and the Small Business Jobs Act of 2010 (Pub. L. 111-240, 124 Stat. 2504 Sept. 27, 2010), requires Federal agencies to consider the effects of the regulatory action on small business and other small entities and to minimize any significant economic impact. The term “small entities” comprises small businesses and not-for-profit organizations that are independently owned and operated and are not dominant in their fields, as well as governmental jurisdictions with populations of less than 50,000.

Section 604 of the RFA requires an agency to prepare a final regulatory flexibility analysis when an agency issues a final rule under 5 U.S.C. 553 after being required to publish a general notice of proposed rulemaking. RFA analysis requirements are limited to rulemakings for which the agency “is required by section 553 or any other law, to publish a general notice of proposed rulemaking for any proposed rule.” As prior notice and comment under 5 U.S.C. 553 are not required for this final rule, the analyses in 5 U.S.C. 603 and 604 are also not required.

In consideration of the foregoing, the Federal Aviation Administration amends title 14, Code of Federal Regulations as follows:

On November 21, 2024, the “Integration of Powered-Lift: Pilot Certification and Operations” final rule (RIN 2120-AL72) published in the Federal Register at 89 FR 92296. After publication, the FAA discovered that two tables had been inadvertently duplicated in the regulatory text of part 194, specifically table 1 to § 194.302 and table 1 to § 194.306. These two tables detail the provisions under parts 91 and 135 applicable to powered-lift, respectively. The first instance of each table includes revisions made prior to the publication of this rule while the second instance is the outdated and incorrect table. These revisions include adding the phrase “of this chapter,” where appropriate, and removing redundant section heading citations. This document corrects those tables by removing the incorrect text from each section. Additionally, the FAA inadvertently incorrectly cited a paragraph in § 142.47(a)(5)(iv). The FAA had intended to cite paragraph (a)(5)(i) but instead cited § 142.47(a)(i). This document corrects that citation.

In FR 2024-24886, published in the Federal Register of November 21, 2024, at 89 FR 92296, make the following corrections:

Issued under authority provided by 49 U.S.C. 106(f), 44701(a), and 44703 in Washington, DC.

Background

Section 335 of the Tariff Act of 1930 (19 U.S.C. 1335) authorizes the Commission to adopt such reasonable procedures, rules, and regulations as it deems necessary to carry out its functions and duties. This rulemaking seeks to improve provisions of the Commission's existing Rules of Practice and Procedure, including increasing the efficiency of its proceedings and reducing the burdens and costs on the parties and the agency. The Commission proposed amendments to its rules governing proceedings conducted under section 337 of the Tariff Act of 1930 (19 U.S.C. 1337), as well as Title VII of the Tariff Act of 1930, which comprises 19 U.S.C. 1671-1677n, sections 201-202, 204, and 406 of the Trade Act of 1974 (19 U.S.C. 2251-2252, 2254, and 2436), and sections 301-302 of the United States-Mexico-Canada Implementation Act (19 U.S.C. 4551-4552).

This rulemaking was undertaken to make certain technical corrections, to clarify certain provisions, to harmonize different parts of the Commission's rules, and to address concerns that have arisen in Commission practice. The intended effect of the amendments is to facilitate compliance with the Commission's Rules and improve the administration of agency proceedings. The Commission is concurrently considering additional amendments to its rules to be reflected in future Notices of Proposed Rulemaking.

The current rulemaking is consistent with the Commission's plan to ensure that the Commission's rules are effective, as detailed in the Commission's Plan for Retrospective Analysis of Existing Rules, published February 14, 2012, and found at 77 FR 8114. This plan was issued in response to Executive Order 13579 of July 11, 2011, and established a process under which the Commission will periodically review its significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed so as to make the agency's regulatory program more effective or less burdensome in achieving regulatory objectives. This process includes a general review of existing regulations in 19 CFR parts 201, 206, 207, and 210.

Although the Commission considers these rules to be procedural rules which are excepted from notice-and-comment under 5 U.S.C. 553(b)(3)(A), the Commission invited the public to comment on all the proposed rules amendments consistent with its ordinary practice. This practice entails the following steps: (1) publication of a notice of proposed rulemaking (“NPRM”); (2) solicitation of public comments on the proposed amendments; (3) Commission review of public comments on the proposed amendments; and (4) publication of final amendments at least thirty (30) days prior to their effective date. The Commission published a NPRM in the Federal Register at 89 FR 22012-39 (Mar. 28, 2024), proposing to amend the Commission's Rules of Practice and Procedure concerning rules of general application, safeguards, antidumping and countervailing duty investigations, and section 337 adjudication and enforcement.

The NPRM requested public comment on the proposed rules within sixty (60) days of publication of the NPRM, i.e., by May 20, 2024. The Commission received four sets of comments from organizations or law firms, including one each from the ITC Trial Lawyers Association (“ITCTLA”); the Customs and International Bar Association (“CITBA”); the ITC Modernization Alliance (“IMA”); and the law firm of Sterne, Kessler, Goldstein & Fox P.L.L.C (“Sterne Kessler”). The IMA is a coalition of companies in the technology, telecom, and automotive industries that have participated in section 337 investigations, including Amazon, Apple, Comcast, Google, HP, Intel, Microsoft, and Samsung, among others.

The Commission has carefully considered all comments that it received. The Commission's response is provided below in a section-by-section analysis. The Commission appreciates the time and effort of the commentators in preparing their submissions.

The Commission has determined that these rules do not meet the criteria described in section 3(f) of Executive Order 12866 (58 FR 51735, Oct. 4, 1993) and thus do not constitute a significant regulatory action for purposes of the Executive Order.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) is inapplicable to this rulemaking because it is not one for which a notice of proposed rulemaking is required under 5 U.S.C. 553(b) or any other statute. Although the Commission chose to publish a notice of proposed rulemaking, these regulations are “agency rules of procedure and practice,” and thus are exempt from the notice requirement imposed by 5 U.S.C. 553(b).

These rules do not contain federalism implications warranting the preparation of a federalism summary impact statement pursuant to Executive Order 13132 (64 FR 43255, Aug. 4, 1999).

No actions are necessary under the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501 et seq. ) because the rules will not result in expenditure in the aggregate by State, local, and Tribal governments, or by the private sector, of $100,000,000 or more in any one year, and will not significantly or uniquely affect small governments, as defined in 5 U.S.C. 601(5).

The rules are not major rules as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq. ). Moreover, they are exempt from the reporting requirements of the Contract With America Advancement Act of 1996 (Pub. L. 104-121) because they concern rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties.

The amendments are not subject to section 3504(h) of the Paperwork Reduction Act (44 U.S.C. 3504(h)).

Many of the final rules set forth in this notice are identical to the correspondingly numbered proposed rules published in the NPRM on March 28, 2024. 89 FR 22012-39 (Mar. 28, 2024). For many of the proposed rules, only positive comments were received or no comment was received. Specifically, the commentators generally support replacing gender-specific language with gender-neutral language in the rules. These rules are: §§ 201.3a, 201.8, 201.15, 201.20, 201.32, 207.10, 207.15, 210.4, 210.12, 210.14, 210.15, 210.20, 210.25, 210.28, 210.31, 210.32, 210.34, 210.37, 210.49, 210.65, and 210.67. The commentators also generally support the elimination of paper copies and the permanent implementation of e-filing requirements. These rules are: §§ 201.8, 201.12, 201.14, 206.2, 206.8, 207.10, 207.15, 207.23, 207.25, 207.28, 207.30, 207.61, 207.62, 207.65, 207.67, 207.68, 210.4, 210.8, 210.14, and 210.75. The Commission has therefore determined to adopt the proposed gender-neutral language and e-filing requirements in the rules as stated in the NPRM. The Commission finds no reason to change those proposed rules on its own (except for certain technical, non-substantive changes) before adopting them as final rules. Thus, the preamble to those unchanged proposed rules is as set forth in the section-by-section analysis of the proposed rules found in the NPRM 89 FR at 22012-39.

The section-by-section analysis below includes a discussion of all modifications suggested by the commentators. As a result of some of the comments, the Commission has determined to modify one (1) of the proposed amendments from the proposals in the NPRM. Regarding the provisions of § 210.12 that govern the content, sufficiency, and submission of a complaint alleging a violation of section 337, the Commission has determined to remove the language “of each element” from paragraph (a)(8)(i) to address the ITCTLA's concern that different jurisdictions may apply different legal standards for unfair acts alleged under section 337(a)(1)(A). The Commission agrees with the ITCTLA that section 337(a)(1)(A) broadly prohibits “[u]nfair methods of competition and unfair acts,” and thus the proposed amendments to paragraph (a)(8)(i) should be applied in a manner that balances the Commission's goals of making clear that bare assertions of unfair acts or methods of competition are insufficient with the need to allege sufficient information to enable the Commission to determine whether a cause of action exists. The Commission has also determined to make four (4) additional changes for consistency or to address its recent precedent. Regarding the provisions of § 207.10 governing filing of petitions with the Commission, the Commission has determined to substitute the language “he or she” from paragraph (b)(1)(i) with “the Secretary.” Regarding the provisions of § 210.14 governing consolidation of investigations, the Commission has determined to substitute the language “he or she” from paragraph (g) with “the administrative law judge.” The Commission has also determined to substitute the language “its standing to” in § 210.12 (g)(9)(iv) and (g)(10)(ii) to “establish that it can bring pursuant to § 210.12(a)(7).” The Commission has recently clarified that § 210.12(a)(7) informs who may bring a complaint.

The analysis below refers to the rules as they appeared in the NPRM. The commentary in the NPRM published on March 28, 2024, is considered part of the preamble to the final rules to the extent that such commentary is not inconsistent with the discussion below. See 89 FR at 22012-39.

Section 201.15 provides general provisions for attorneys and others practicing and appearing before the Commission. The Commission proposed in the NPRM to revise paragraph (a) to indicate that no separate application for admission to practice before the Commission is required. It also proposed revising the paragraph to provide that attorneys practicing or desiring to practice before the Commission must maintain a bar membership in good standing in any State of the United States or the District of Columbia and must report any change in status including, but not limited to, disbarment or suspension by any bar association, court, or agency. The Commission welcomed comments on whether these requirements should be mandatory or permissive and how the Commission should use this information. The Commission further proposed that non-attorneys desiring to appear before the Commission may be required to show that they are acceptable in the capacity in which they seek to appear.

The Commission also proposed to revise paragraph (b) to clarify that the restrictions on a former officer or employee of the Commission from practicing or appearing before the Commission in connection with a matter which was pending in any manner or form in the Commission during that person's employment applies to both former attorney and non-attorney employees of the Commission.

Additionally, for the reasons noted above regarding gender neutral language amendments, under § 201.3a(c), the Commission proposed to change certain gender-specific language in § 201.15(a) and (b) to remove several references to “he,” “him,” and “his.” No substantive changes are intended.

The CITBA supports requiring all attorneys appearing before the Commission to maintain good standing and active bar membership in at least one U.S. state or the District of Columbia. It also supports mandatory reporting of any change in that status by the attorney to the Commission and by the Commission to such bars, including but not limited to disbarment or suspension by any bar association, court, or agency. The CITBA submits that “the Commission has a need to know and an obligation to report such information to authorities in a position to take appropriate actions beyond restricting the attorneys' appearance in Commission proceedings.”

As discussed above in the Overview of the Amendments to the Regulations, the commentators generally support these changes as well as replacing gender-specific language with gender-neutral language in the rules.

No commentator opposes the proposed changes to § 201.15. The Commission has therefore determined to adopt the proposed rule as stated in the NPRM. The Commission does not include in the rule a requirement that the Commission report the status or any change in status of an attorney to any bar association, court, or agency, though retains the discretion to do so in appropriate circumstances. It is not clear that CITBA is advocating for such a rule and in any event has not stated the basis for its assertion that the Commission has an obligation to report such information nor is the Commission aware of such an obligation.

Section 207.15 provides for written briefs and a conference in preliminary phase antidumping and countervailing duty investigations. Consistent with the proposed amendments to § 201.8, the Commission proposed to eliminate the requirement for submission of paper copies of briefs. The Commission proposed to only require submission of paper copies of written witness testimony when it is provided on the day of the conference, but not when it is filed electronically prior to the date of the conference. For the reasons noted in its explanation for the proposed change under § 201.3a(c), the Commission proposed to change certain gender-specific language to remove a reference to “he.” The Commission also proposed to remove language related to electronic filing since that requirement is in § 201.8 and to replace the term “Director” with “presiding official” for consistency.

CITBA comments that permitting parties to either file witness testimony electronically the day before a conference or submit paper copies of written witness testimony the day of the conference would create a perverse incentive for parties to only submit paper copies the day of the conference, to avoid revealing their testimony to opposing parties prior to the conference. CITBA urges the Commission to adopt a requirement that written witness testimony must be filed by a deadline of 4 p.m. the day before a conference for the submission.

The proposed amendments to § 207.15 would give parties, who desire to submit written testimony, the option of submitting their written witness testimony electronically either before the date of the conference, unaccompanied by paper copies, or on the day of the conference, but with the added requirement that nine (9) paper copies of the witness testimony also be filed. This is a change from the current rule which allows for the submission of written testimony but only through the provision of paper copies the day of the conference. The purpose of this change is to provide parties greater flexibility and eliminate the requirement for paper copies for those parties who wish to submit written testimony but find providing paper copies burdensome. The proposed amendments to § 207.15, however, would not alter the current rule that a party may provide written witness testimony in connection with its presentation at the conference but is not required to do so. The Commission recognizes that some witnesses may choose to submit paper copies the day of the conference, or not to file written testimony at all, to avoid revealing their testimony in advance. The Commission, however, encourages parties where possible to file witness testimony electronically no later than the day before the conference. Filing witness testimony before the conference is helpful to Commission staff, because having an advanced opportunity to review the testimony facilitates staff's understanding of the issues to be addressed during the conference. Written witness testimony is also helpful to Commission staff as they may follow along as testimony is presented and note areas for questions. The Commission, however, has chosen not to impose a requirement that witness testimony be filed the day before the conference and instead to adopt a rule that provides flexibility for parties to choose to file testimony either electronically no later than the day before the conference, or the same day with paper copies.

Section 207.24 provides procedures for hearings. The Commission proposed to only require submission of paper copies of written witness testimony when it is provided on the day of the hearing, but not when it is filed electronically prior to the date of the hearing. The Commission proposed to delete the reference to § 201.13(f), consistent with the clarifications proposed for that section.

CITBA comments that permitting parties to either file witness testimony electronically the day before a hearing or submit paper copies of written witness testimony the day of the hearing would create a perverse incentive for parties to only submit paper copies the day of the hearing, to avoid revealing their testimony to opposing parties prior to the conference. CITBA urges the Commission to adopt a requirement that written witness testimony must be filed by a deadline of 4 p.m. the day before a hearing for the submission of all witness testimony.

The proposed amendments to § 207.24 would give parties the option of submitting written witness testimony electronically either before the date of the hearing, unaccompanied by paper copies, or on the day of the hearing, but with the added requirement that nine paper copies of the witness testimony also be filed. This is a change from the current rule which allows for the submission of written testimony but only through the provision of paper copies the day of the hearing. The purpose of this change is to provide parties greater flexibility and eliminate the requirement for paper copies for those parties who wish to submit written testimony but find providing paper copies burdensome. The proposed amendments, however, would not alter the current rule that a party may provide written witness testimony in connection with its presentation at the hearing but is not required to do so. The Commission recognizes that some witnesses may choose to submit paper copies the day of the hearing, or not to file written testimony at all, to avoid revealing their testimony in advance. The Commission, however, encourages parties where possible to file witness testimony electronically no later than the day before the hearing. Filing witness testimony before the hearing is helpful to Commissioners and staff, because having an advanced opportunity to review the testimony facilitates Commissioners' and staff's understanding of the issues to be addressed during the hearing. Witness testimony is also helpful to Commissioners and staff as they may follow along as testimony is presented and note areas for questions. The Commission, however, has chosen not to impose a requirement that witness testimony be filed the day before the hearing and instead to adopt a rule that provides flexibility for parties to choose to file testimony either electronically no later than the day before the hearing, or the same day with paper copies.

Section 210.10 provides the general provisions for institution of an investigation. The Commission proposed in the NPRM to amend paragraph (a)(1) of this section to add that the Commission will not institute an investigation within thirty (30) days after the complaint is filed if the Commission determines that the complaint or any exhibits or attachments thereto contain excessive designations of confidentiality that are not warranted under §§ 201.6(a) and 210.5 of this chapter. Proposed paragraph (a)(7) explains that, under such circumstances, the Commission may require the complainant to file new nonconfidential versions of the aforesaid submissions in accordance with § 210.8 and may determine that the thirty (30)-day period for deciding whether to institute an investigation shall begin to run anew from the date that the new nonconfidential versions are filed with the Commission. This is consistent with existing § 210.55(b) of this chapter, which contains similar provisions pertaining to complaints accompanied by a motion for temporary relief, and was also proposed to be added to § 210.75, which concerns enforcement complaints.

The ITCTLA supports the proposed amendments to § 210.10 and recognizes that the proposed amendments “put[ ] stakeholders on notice of a specific mechanism the Commission may employ to curtail CBI designation abuses.” The ITCTLA noted that, although the term “excessive” is not “clearly defined,” it recognizes that the suggested language “is consistent with long-standing rules and practice and can be interpreted in that context.” The ITCTLA thus views the proposed changes as “codifying existing Commission practices targeting excessive redactions and causing few, if any, delays to institution of a complaint.”

Sterne Kessler proposes including an explicit statement that any decision to not institute will occur only “after appropriate notice to correct the excessive designations” has been provided to complainant.

The ITCTLA and Sterne Kessler offer the same comments regarding confidentiality designations in § 210.75.

The Commission agrees with the ITCTLA that the proposed amendments to §§ 210.10 and 210.75 implement existing Commission practice regarding excessive designations of confidentiality as set forth under §§ 201.6(a) and 210.5 of this chapter. The Commission considers Sterne Kessler's concern to be adequately addressed by the proposed addition of paragraph (a)(7) in § 210.10, which provides that the Commission may require the complainant to file new nonconfidential versions of the submissions determined to contain excessive designations of confidentiality in accordance with § 210.8, and that the thirty (30)-day period for the Commission to decide whether to institute an investigation may begin to run anew from the date that the new nonconfidential versions are filed with the Commission. As the ITCTLA recognizes, a complainant can seek guidance from the Office of Unfair Import Investigations during the pre-filing period regarding redactions to a complaint or any exhibits or attachments thereto. The Commission has therefore determined to adopt the proposed rules for §§ 210.10 and 210.75 as stated in the NPRM.

Section 210.12 contains the provisions governing the content, sufficiency, and submission of a complaint alleging a violation of section 337. The Commission proposed in the NPRM to make several amendments to the existing rule. Specifically:

For the reasons discussed in the NPRM in connection with § 201.8, the Commission proposed to replace “agent” in paragraph (a)(1) with “corporate representative” and to amend certain gender-specific language in paragraphs (a)(1) and (j). The Commission proposed in the NPRM to amend § 210.12(a)(1) to require a complaint to include email addresses for the complainant and its duly authorized officer, attorney, or corporate representative who has signed the complaint. The proposed amendment to § 210.12(a)(3) removes reference to the Tariff Schedules of the United States that applied prior to January 1, 1989. The proposed amendment to § 210.12(a)(5) expands the required disclosure to include information about arbitrations concerning the alleged unfair methods of competition and unfair acts, or the subject matter thereof.

The Commission proposed in the NPRM to amend § 210.12(a)(6)(i) by reorganizing the rule to more clearly distinguish between the information required to support a complaint based on an alleged domestic industry that exists and the information required to support a complaint based on an alleged domestic industry in the process of being established for complaints that allege a violation based on infringement of a U.S. patent, or a federally registered copyright, trademark, mask work, or vessel hull design. The Commission also proposed correcting typographical errors in spacing and punctuation in paragraphs 210.12(a)(6)(ii) and 210.12(a)(6)(iii).

The Commission proposed amending § 210.12(a)(7) by removing an extraneous “and” at the end of paragraph (a)(7).

The Commission proposed amending § 210.12(a)(8)(i) and (ii) to clarify that, for complaints based on an unfair act or method of competition under section 337(a)(1)(A), the complaint's statement of facts should include factual allegations that would show the existence of each element of the cause of action underlying the unfair act or method of competition. The purpose of these amendments would be to make clear that bare assertions of unfair acts or methods of competition without factual allegations supporting all elements of a cognizable legal theory do not meet the requirements of § 210.12(a)(2). For example, a complaint based on trade secret misappropriation would have to include factual allegations sufficient to establish every element of a trade secret misappropriation claim. The Commission also proposed correcting the terminal punctuation for § 210.12(a)(8)(ii) and requires that the complaint state the elements of the proposed legal theory.

The Commission proposed amending § 210.12(a)(9)(v) by adding a requirement to disclose known domestic patent applications that correspond to the patents asserted in the investigation in addition to the existing required disclosure of foreign patent applications. The Commission expressed interest in comments from the public regarding the burden this amendment would place on complainants.

The Commission proposed correcting the terminal punctuation for § 210.12(a)(9)(xi) and adds an “and” at the end of § 210.12(a)(10)(i) for grammatical purposes.

The Commission proposed amending § 210.12(a)(11) by adding a requirement that a complaint seeking a general exclusion order must plead factual allegations sufficient to show that such an order is available under the requirements of section 337(d)(2). The Commission noted that this information has been voluntarily included in various complaints filed under the current rules. This proposed amendment would formalize the requirement to include such information in complaints going forward. The Commission believes this amendment will lead to greater efficiency in investigations where general exclusion orders are requested. The proposed rule also adds an “and” at the end of § 210.12(a)(11)(ii) for grammatical purposes.

The Commission proposed amending § 210.12(b) to change the word “all” to “exemplary,” as the Commission recognizes that it might not be feasible to submit physical samples of all imported articles.

The Commission proposed amending paragraphs 210.12(c)-(h) to remove the reference to the “original” complaint because the rules propose to remove paper filings. The Commission proposed amending § 210.12(c)(2) by eliminating the requirement that the complaint be accompanied by the applicable pages of each technical reference mentioned in the prosecution history of each involved U.S. patent. The Commission believes that this requirement is no longer necessary given the availability of such materials online. The Commission also proposed amending § 210.12(c) by removing the requirement in subparagraph (2) for four (4) copies of the patent, because it is duplicative of § 210.12(a)(9)(i), and by adding new subparagraph (2) requiring one copy of each prosecution history of any priority applications for the asserted patents to accompany a patent-based complaint.

Regarding the proposed amendments to paragraphs 210.12(a)(8)(i) and (ii), the ITCTLA is concerned that potentially different legal standards among different judicial circuits for what constitutes an unfair act subject to section 337(a)(1)(A) may “make it difficult for a complainant to be certain that it is adequately including factual allegations and legal theories that would show the existence of each element of the cause of action,” especially where the Commission has not previously set out a standard for a violation of that cause of action. The ITCTLA notes that, unlike patent infringement cases, which are reviewed by a single appeals court, non-patent “unfair acts are reviewed by appellate courts throughout the United States resulting in standards that can vary among circuits.” As such, the ITCTLA is “concerned that the proposed amendment could lead to non-institution of claims for complaints that provide a good faith attempt to articulate the factual and legal elements of a particular cause of action.” It also believes “[t]his uncertainty could [ ] discourage parties from bringing new or novel causes of action to the Commission.” Thus, while the ITCTLA “supports efforts to require specificity in pleading (a)(1)(A) claims,” it urges the Commission to apply the rule in a manner consistent with section 337(a)(1)(A)'s “goal of broadly permitting parties to allege violations of Section 337 for unfair methods of competition and unfair acts.”

Sterne Kessler supports adding the requirement in paragraph (a)(9)(v) to disclose known domestic patent applications that correspond to the patents asserted in the investigation. It believes this requirement is “especially critical for non-public applications filed within the eighteen-month publication window or for which a non-publication request was filed.” It notes that “[a]ny such information could be treated as Confidential Business Information and presumably is available to complainants despite the additional burden associated with its disclosure.” Sterne Kessler also proposes amending §§ 210.12(a)(9)(viii) and (ix), and 210.13(b)(1), to clarify that respondents “are required to disclose non-infringement and invalidity claim charts with their Response.”

The IMA notes that, while having no specific comments on or issues with the proposed amendments to § 210.12, it has concerns which are not addressed by the proposed amendments. In particular, the IMA recommends amending §§ 210.12(a)(9) and 210.13(b) to add a requirement for parties to disclose the existence of third-party litigation funding, which it asserts has been on the rise according to data it presents regarding patent litigation in district courts. The IMA believes disclosure of whether third-party litigation funding is involved in a particular case, and the transparency it brings, are important to allow the Commission to accurately assess conflicts, ensure fairness to the parties in a dispute, and assess the effect of an exclusion order on the public interest.

The ITCTLA's concerns about the potentially differing legal standards applied by different judicial circuits for unfair acts subject to section 337(a)(1)(A) appear to be limited to § 210.12(a)(8)(i) and do not concern the proposed amendments to paragraph (a)(8)(ii). The Commission agrees with the ITCTLA that section 337(a)(1)(A) generally prohibits “[u]nfair methods of competition and unfair acts,” and thus the proposed amendments to paragraph (a)(8)(i) should be applied in a manner that addresses the Commission's goals of making clear that bare assertions of unfair acts or methods of competition are insufficient and the need to allege sufficient information to enable the Commission to determine whether a cause of action is properly pled. Upon consideration of the proposed rule, the Commission has determined to remove the language “of each element” from paragraph (a)(8)(i). The Commission believes this change addresses the ITCTLA's concerns that different jurisdictions may articulate different standards for certain causes of action.

No commentator opposes adding the requirement in paragraph (a)(9)(v) to disclose known domestic patent applications that correspond to the patents asserted in the investigation. The Commission has therefore determined to adopt the remainder of proposed rule 210.12 as stated in the NPRM.

The Commission has determined not to consider at this time Sterne Kessler's suggestion to require respondents to disclose non-infringement and invalidity claim charts with their Response because it was not part of the NPRM. The Commission notes the proposal and may consider it in future rulemakings.

The IMA's proposal to require parties to disclose the existence of third-party litigation funding in an investigation was not part of the NPRM. The Commission notes the proposal and may consider it in future rulemakings.

Section 210.14 generally provides for amendments to the pleadings and notice of investigation. Paragraph (a) provides for pre-institution amendments to the complaint and notice of investigation, while paragraph (b) provides for post-institution amendments.

The Commission proposed amending the heading of this section to indicate the existing severance provision under paragraph (h). The Commission further proposed to add the requirement that amended complaints, exhibits, and supplements thereto, filed under this section shall be filed electronically with the Secretary pursuant to § 210.4.

The Commission further proposed to amend paragraphs (a) and (b)(1) to clarify that any proposed amendment to the complaint and notice of investigation that introduces an additional unfair act or an additional respondent must comply with the content requirements of § 210.12(a). See Certain Skin Rejuvenation Resurfacing Devices, Components Thereof, and Products Containing the Same, Inv. No. 337-TA-1262, Notice of Commission Decision to Review, and on Review, to Vacate and Remand an Initial Determination Granting Complainants' Motion to Amend the Complaint and Notice of Investigation (Sept. 22, 2021). For example, an amendment to add a cause of action under section 337(a)(1)(A) to an investigation instituted under section 337(a)(1)(B) of that Act would be required to contain all of the information required in the relevant portions of § 210.12(a) of the Commission's Rules. The purpose of the amendment is to ensure that the public, all affected parties, and/or new respondents have adequate notice of the scope of any substantive amendment to the complaint and notice of investigation.

For § 210.14(b)(1), the requirement is also intended to provide the presiding administrative law judge and the Commission with the information needed to determine whether good cause exists to allow the proposed amendment after institution. This section is also amended to make clear that the complainant shall serve the motion to amend the complaint and notice of investigation on any new proposed respondent and on all current respondents. It also is amended to require the Commission to serve the amended complaint and notice of investigation on any new respondent and the embassies of the relevant foreign countries after the Commission determines to affirm or not review an initial determination granting the motion. Further, this section is amended to require complainants to file service copies of the complaint and exhibits, including paper service copies of the amended complaint, for each new respondent and for the embassy of the country in which the respondent is located by the close of the next business day after the amended complaint is filed.

Section 210.14(b)(1) currently lacks any indication of whether and when a response to an amended complaint and/or notice of investigations is required. The absence of such guidance has led to inconsistent practice across investigations. Accordingly, the Commission proposed to amend § 210.14(b)(1) by clarifying that responses from respondents currently in the investigation are required, and that they shall be due within ten (10) days of the service of the order (for amendments only to the complaint), or of the Commission determination affirming or not reviewing an initial determination (for amendments to the complaint and notice of investigation), as applicable, that grants a motion to amend the complaint and/or notice of investigation. The Commission intends that any response to an amended complaint and/or notice of investigation should conform to the same content requirements applicable to a response to an initial complaint and notice of investigation, as provided in § 210.13(b). The Commission also proposed specifying that if any additional respondents are added to the investigation, they shall have twenty (20) days from the date of service of the amended complaint and notice of investigation to file a written response.

Section 210.14(g) currently allows two or more investigations to be consolidated if: (1) the Commission consolidates the investigations; or (2) the presiding administrative law judge consolidates investigations before that judge. There is no mechanism under the current rule for investigations before different administrative law judges to be consolidated absent Commission intervention. The proposed amendment to § 210.14(g) would address this by providing that the Chief Administrative Law Judge may consolidate investigations that are before different presiding administrative law judges and assign an administrative law judge to preside over the consolidated investigations.

Sterne Kessler recommends requiring complainants to provide the Commission (and, accordingly, all parties to the investigation, as well as the public) with a redlined copy of any amended pleadings, in addition to a clean copy of the amended pleadings under both paragraphs (a) and (b).

The Commission does not adopt Sterne Kessler's recommendation to require complainants to provide a redlined copy of the amended pleadings. Because amended pleadings are filed electronically with the Secretary, parties can easily generate a redlined copy of the amended pleadings.

Section 210.28 concerns the procedures governing depositions taken during Commission investigations. Current § 210.28(a) limits the number of fact depositions that each party, including the Commission investigative attorney, may take in an investigation. The Commission is aware that disputes have arisen over whether depositions of non-party witnesses count towards the limits in § 210.28(a). In response to those disputes, the Commission proposed to amend the rule by adding a sentence clarifying that party and non-party depositions, alike, count toward the limits recited in paragraph (a). A notice for a corporation to designate deponents, however, shall continue to count as only one deposition and shall include all corporate representatives so designated to respond.

The Commission further proposed to change the limit for complainants as a group from five (5) fact depositions per respondent to a total of twenty (20) fact depositions, regardless of the number of respondents. This amendment effects a simplification of the current rule, which permits a complainant group to take the greater of either twenty depositions or five per respondent. It also provides for the same number of fact depositions for complainants as a group and respondents as a group. The amendment does not abrogate the presiding administrative law judge's authority to increase the number of fact depositions allowed on a showing of good cause by any party. Thus, the Commission does not anticipate that the proposed amendment will foreclose a complainant group from taking additional depositions if good cause to do so exists.

While current § 210.28 limits the number of depositions that may be taken, there is no provision specifying the maximum permissible length of a deposition. By contrast, Federal Rule of Civil Procedure 30 presumptively limits depositions to one (1) day of seven (7) hours. The Committee Notes to the 2000 Amendments to Federal Rule of Civil Procedure 30(d) explain that the one-day limitation was designed to restrain undue cost and delay that can result from overlong depositions. Fed. R. Civ. P. 30(d) (2000 Advisory Committee Note). The Committee Notes explain that the rule contemplates reasonable breaks throughout the day and that only time occupied by the actual deposition will be counted. They further explain that, for purposes of the durational limit, the deposition of each person designated in response to a deposition noticed under Federal Rule of Civil Procedure 30(b)(6) should be considered a separate deposition. Id.

The Commission proposed to amend § 210.28 by adding a new paragraph (b), which includes a presumptive durational limitation of one (1) day of seven (7) hours to depositions conducted under that section consistent with Federal Rule of Civil Procedure 30. The Commission intends for the limitation to control in the absence of an agreement among the parties or an order of the presiding administrative law judge otherwise. The amended rule requires the presiding administrative law judge to grant additional time as needed, to the extent consistent with the provisions of paragraphs 210.27(b) through 210.27(d), which govern the scope of and limitations on discovery, respectively. The reference to those paragraphs is intended to ensure that additional time is only granted in proportion to the needs of the investigation. The Commission intends for the same computational rules to apply as are laid out in the Committee Notes to the 2000 Amendments to Federal Rule of Civil Procedure 30. Specifically, only time actually spent conducting the deposition will count towards the seven (7) hour limit, and for the purpose of the durational limit each individual designated in response to a deposition notice directed to a party will be considered a separate deponent. Nothing in this proposed rule should be construed to alter the provision in paragraph (a) that specifies that each notice of deposition to a party is counted as a single deposition for purposes of calculating the total number of depositions that may be taken by a party.

Due to the addition of new paragraph (b), the Commission proposed to redesignate current paragraphs (b) through (i) as paragraphs (c) through (j), respectively.

Current paragraph (f), which in the proposed rule would be redesignated as paragraph (g), requires the party taking a deposition to promptly serve a copy of the deposition transcript on the Commission investigative attorney. As written, current paragraph (f) could be read as not requiring service of exhibits marked during the deposition. In order to remove that ambiguity, the Commission proposed amending current paragraph (f), redesignated as paragraph (g), to make clear that copies of the deposition exhibits must be included when the transcript is served on the Commission investigative attorney.

For the reasons noted above under § 210.4, the Commission also proposed to amend certain gender-specific language in current paragraphs (c) and (h)(4), redesignated as paragraphs (d) and (i)(4), respectively, by replacing references to “he” and “him.” The Commission also proposed to add that testimony may be taken by “videoconference” to current paragraph (c) (redesignated as (d)).

The ITCTLA cautions against clarifying that party and non-party depositions, alike, count toward the limits recited in paragraph (a) for two reasons. First, it believes including non-party depositions in the twenty-deposition limit under paragraph (a) would “impede the development of a fulsome evidentiary record on a number of issues, particularly those relating to the public interest,” but also issues relating to domestic industry, patent validity, and infringement. For example, the ITCTLA explains that disputes over validity often require the parties to obtain evidence from third parties regarding prior art references and potential prior public uses. Moreover, it explains that non-party discovery may be needed to fully understand the products accused of infringement and the domestic industries of third parties upon which a complainant relies, and the impact of the public interest considerations on non-parties. The ITCTLA further believes that applying a twenty-deposition limit to complainants as a group regardless of the number of respondents could impede the ability to obtain sufficient evidence against each respondent in investigations involving more than four respondents. This is a particular concern “in cases involving widespread infringement, particularly general exclusion order cases.”

Second, the ITCTLA states that requiring approval before exceeding the deposition limit “will either add to the motion practice before the Administrative Law Judges or not be effective within the short discovery period in ITC proceedings.” In particular, it explains that the need for non-party discovery often is not evident until some discovery is completed, or initial contentions disclosed, at which point there is little time remaining [in] the fact discovery period.” The ITCTLA warns that the proposed rule could cause parties to routinely file motions for increased depositions at the outset of each case.

Concerning new paragraph (b), the ITCTLA recommends exempting translated depositions from the presumptive seven-hour limit because they “commonly take longer (often 1.5 to 2 times normal deposition lengths) to complete.” Sterne Kessler recommends increasing the presumptive durational limit for depositions to ten (10) hours if, for example, an interpreter is required to translate the deposition.

The Commission declines to adopt the ITCTLA's suggestion to remove the twenty-deposition limit under paragraph (a) or to exclude non-party depositions from that limit. While the Commission agrees with the ITCTLA that non-party discovery may be important to certain issues that arise in section 337 investigations, this does not provide a basis to distinguish depositions of party witnesses from a non-party witness for purposes of this rule. The Commission notes that Rule 30(a)(2)(A)(i) of Federal Rule of Civil Procedure also does not distinguish between party and non-party witness depositions. In addition, the proposed change to § 210.28(a) allows twice as many depositions as Rule 30(a)(2)(A)(i) of Federal Rule of Civil Procedure, which establishes a limitation of ten (10) depositions being taken by a party unless leave of court is obtained. As for the ITCTLA's concern that requiring approval from the administrative law judge before exceeding the twenty-deposition limit will “not be effective within the short discovery period in ITC proceedings,” it is precisely because of that short period that a clear limit on the number of depositions at the outset of an investigation is necessary. Thus, the Commission believes that the proposed rule provides an adequate number of depositions for most investigations and provides the administrative law judge with appropriate flexibility in increasing the number of depositions as appropriate. Therefore, the final rule is unchanged from the proposed rule.

Regarding the ITCTLA's and Sterne Kessler's concerns about the need for additional time if an interpreter is required to translate the deposition, the Commission declines to exempt depositions using an interpreter or impose a predetermined durational limit of ten (10) hours for translated depositions. Rather, the proposed rule encourages parties to agree to a reasonable length for translated depositions. Absent an agreement and in keeping with the Federal rules, the Commission notes that parties may seek additional time for depositions beyond the default seven (7) hour limit by order of the presiding administrative law judge. Indeed, the notes to Federal Rule of Civil Procedure 30 indicate the need for an interpreter is one circumstance justifying an order extending deposition time limits.

Section 210.30 is similar to Federal Rule of Civil Procedure 34 and provides procedures governing requests for production or inspection of documents and things, as well as entry upon land, during discovery. Section 210.30, like Federal Rule of Civil Procedure 34, includes provisions permitting a party from whom information is requested to object to the request. Current § 210.30 differs from Federal Rule of Civil Procedure 34, however, in that it does not require an objecting party to state whether it is withholding any responsive materials on the basis of its objection. As explained in the Committee Notes to the 2015 amendments to Federal Rule of Civil Procedure 34, which added the requirement, the purpose of the amendment was to “end the confusion that frequently arises when a producing party states several objections and still produces information, leaving the requesting party uncertain whether any relevant and responsive information has been withheld on the basis of the objections.” Fed. R. Civ. P. 34 Advisory Committee Notes—2015 Amendment. For similar reasons, the Commission proposed to amend § 210.30(b)(2) to include a requirement that any objection to a request to provide information must state whether any responsive materials are being withheld on the basis of that objection and that the party must permit inspection of any other materials not being withheld.

For the reasons noted above under § 210.4, the Commission proposed to amend certain gender-specific language in paragraph (a)(1) by replacing “his behalf” with “that party's behalf.” In paragraph (b)(2) of § 210.30, the Commission also proposed to change “10 days” to “ten (10) days” for clarity. No substantive change is intended.

The ITCTLA supports aligning § 210.30(b)(2) with the Federal Rule of Civil Procedure 34. However, it believes the proposed rule “may appear unnecessarily burdensome to the producing party without further explanation by the Commission.” In particular, the ITCTLA recommends that the Commission include a reference to the full Advisory Committee Note on FRCP 34(b)(2)(C), which clarifies that:

The ITCTLA also recommends that the Commission state that federal court decisions will be used to guide interpretation of the proposed changes to § 210.30(b)(2).

The Commission proposed amending § 210.30(b)(2) to conform to the 2015 amendments to FRCP 34(b)(2)(C). Accordingly, the Commission agrees with the ITCTLA that the proposed rule should be interpreted in view of the full 2015 Committee Notes, including the helpful guidance about what the producing party's obligation does and does not require in practice, and federal court decisions interpreting FRCP 34(b)(2)(C). As the ITCTLA points out, that guidance provides that parties would not be required to provide “an `objection log'—similar to a privilege log—that specifically listed all of the documents not being produced as a result of the objection.” Fed. R. Civ. P. 34 Advisory Committee Notes—2015 Amendment. Moreover, the Committee Notes explain:

No other comments concerning the proposed amendments to § 210.30 were received other than general support for the use of gender-neutral language in the rules. The Commission has therefore determined to adopt the proposed rule as stated in the NPRM with the above clarifications proposed by the ITCTLA.

For the reasons stated in the preamble, the United States International Trade Commission proposes to amend 19 CFR parts 201, 206, 207, and 210 as follows:

On October 10, 2024, the Postal Service filed a notice in PRC Docket No. MC2025-58, which the PRC favorably reviewed on December 2, 2024, in Order No. 8179, regarding the termination of international Return Receipt as an extra service for Priority Mail International and First-Class Package International Service, effective January 1, 2025, although international Return Receipt will continue to be eligible when combined with registered letters and flats sent as First-Class Mail International.

The Postal Service hereby adopts the described changes to Mailing Standards of the United States Postal Service, International Mail Manual (IMM), which is incorporated by reference in the Code of Federal Regulations.

We will publish an appropriate amendment to 39 CFR part 20 to reflect these changes.

Accordingly, the Postal Service amends Mailing Standards of the United States Postal Service, International Mail Manual (IMM), incorporated by reference in the Code of Federal Regulations as follows (see 39 CFR 20.1):

Table of Contents I. Executive Summary II. Background a. Rulemaking History b. Chest Jacket c. Spine Box III. Summary of the Final Rule IV. Post-NPRM Measurement and Analysis V. Response to Comments a. Dimensional Targets and the Use of Mandrel b. Certification c. Annual Inspection Specification d. Other Measurement Device e. Spine Box f. Sample Size VI. Changes to Drawing Package and PADI VII. Housekeeping Amendments VIII. Lead Time IX. Regulatory Analyses and Notices I. Executive Summary

This final rule finalizes changes to the Hybrid III 5th percentile adult female (HIII-5F) anthropomorphic test device (ATD or crash test dummy or dummy). The HIII-5F is used in frontal compliance crash tests and air bag static deployment tests, certification to which is required for certain vehicles by Federal Motor Vehicle Safety Standard (FMVSS) No. 208, Occupant crash protection. The dummy is described in 49 CFR part 572, subpart O.

Among other things, subpart O incorporates by reference several documents that specify the physical make-up of the dummy. This document finalizes changes to the chest jacket and spine box specifications to address issues with the fit and availability of the jacket and a noise artifact from the spine box. Today's rulemaking responds to the Alliance of Automobile Manufacturer's (the Alliance) 2014 petition for rulemaking. 1

The chest jacket is a sleeveless foam-filled vinyl zippered jacket that represents human flesh, including female breasts. The chest jacket may need to be replaced because it can shrink or otherwise fall out of specification or wear out with age. Since the introduction of the HIII-5F into part 572 in 2000, none of the jackets that were manufactured met the jacket specifications specified in part 572. Since around 2006, NHTSA, in its own compliance tests, has used the brand of dummy and jacket (either First Technology Safety Systems (FTSS) or Denton ATD (Denton)) used by the vehicle manufacturer to certify the vehicle. However, these FTSS and Denton jackets are no longer being manufactured; manufacturers (or test laboratories) and NHTSA have, or will soon, run out of these jackets. In 2013, SAE  2  published an information report for the HIII-5F chest jacket, SAE J2921 JAN2013, H-III5F Chest Jacket Harmonization, describing a new jacket compatible with FTSS and Denton dummies.

The NPRM proposed to adopt the jacket specifications described in SAE J2921, as well as a few additional specifications. We believed that chest jackets that have been and are being manufactured to the SAE J2921 design would also conform to the proposed specifications. NHTSA also believed that additional specifications were necessary to ensure a sufficient level of uniformity between jackets produced by different manufacturers when other manufacturers enter the market, and to prevent the variances in jacket designs that were problematic in the past from reoccurring. Based on NHTSA's testing, the agency concluded that dummies fitted with chest jackets that satisfy the proposed specifications would perform equivalently to dummies fitted with the FTSS or Denton jackets that were previously used. A benefit of standardized jacket specifications would be that the agency would no longer have to maintain chest jackets of different designs and take steps to match the compliance test jacket with that specified by the vehicle manufacturer, thereby providing more objective test results.

The spine box is the dummy's steel backbone. It is located in the dummy's thorax, which consists of six bands that simulate human ribs. Since the mid-2000s, industry and NHTSA have been aware of a signal noise artifact in the signals from the accelerometers in the thorax during sled and crash tests originating in the spine box. The source of the noise is fasteners that become loose during normal use. In 2011 SAE published an information report for a spine box modification (SAE J2915 AUG2011, H-III5F Spine Box Update to Eliminate Noise ).

We proposed to adopt the SAE J2915 modification. The proposed revisions would add plates to the side of the spine box, with bolts countersunk into the plate to remove any play from the assembly. The modification would not affect or change the dummy's performance in any way (other than eliminate the potential for noise). The improved spine box would address a shortcoming in the ATD's design that had to be addressed by end users disassembling the dummy, re-torquing the relevant fasteners by hand before each test, and re-qualifying the dummy as needed. The improved spine box would increase the quality of data and reduce maintenance and testing time.

NHTSA received comments from Humanetics Innovative Solutions, Inc. (HIS), the Alliance for Automotive Innovation (the Alliance), and Ms. Sial (an individual commenter). All commenters were generally supportive of the NPRM, with a few measurement specification recommendations.

The final rule adopts most of the NPRM's proposed specifications, with minor changes to ensure a sufficiently low level of variation among jackets based on analysis of post-NPRM measurement data and commenters' data. For the jacket, the agency updates the values of some dimensions to reflect more closely the larger pool of measurement data acquired since the NPRM. We also increase the dimensional tolerances in several places because the proposed tolerances were unnecessarily small. Additionally, a limited number of dimensions are revised to become “reference only” dimensions (which are useful during inspections) because the larger pool of data revealed that there were not consistent reference measurement points associated with them. For the spine box, the final rule adjusts the mass specification slightly to reflect a small increase in mass due to the material that is added.

Furthermore, the rule's effective date is 45 days after the final rule's publication date. The final rule change is not intended to impose new requirements on vehicle manufacturers. We believe currently manufactured chest jackets meet the SAE J2921 specifications and meet the finalized specifications. We also believe that the parts to implement the spine box fix are available, as are newly manufactured replacement spine boxes that incorporate the fix. Manufacturers wishing to test with the finalized jacket and spine box should have no difficulty obtaining the necessary parts.

The costs associated with this rulemaking are limited to those associated with acquiring new dummy parts. We conclude that the finalized changes would not necessitate the purchasing of any parts that would not have been purchased in the normal course of business in the absence of the finalized changes. This final rule is not significant and was not reviewed by the Office of Management and Budget under E.O.12866.

In 2014, the Alliance petitioned NHTSA to incorporate the new SAE jacket into part 572 per SAE Information Report J2921 and revise the spine box as described in SAE Information Report J2915. 3 NHTSA subsequently sent a letter to the Alliance asking for clarification on several points. The Alliance responded to NHTSA's request with a supplemental letter dated May 11, 2015. 4 NHTSA granted this petition.

On December 26, 2019, NHTSA published a NPRM (84 FR 70916) to revise the chest jacket and spine box specifications for the Hybrid III 5th Percentile Female Test Dummy (HIII-5F) set forth in Part 572— Anthropomorphic Test Devices. NHTSA proposed to adopt the jacket specifications described in SAE J2921, as well as several additional specifications for the jacket's contour that are not contained in SAE J2921.

The NPRM comment period closed on February 24, 2020. HIS requested a ninety-day extension to the NPRM comment period to collect data regarding the proposed additional chest jacket specifications while also ensuring a sufficient sample size. 5 On June 2, 2020, the agency extended the comment period until August 3, 2020 (85 FR 33617). NHTSA also published a set of instructions on how to record jacket measurements in the rulemaking docket. 6 The instructions were written for lab technicians to record the jacket measurements. They were the same jacket measurements as those proposed in the NPRM but conveyed in more comprehensible format than in the NPRM. After the extended comment period in August 2020, HIS and the Alliance submitted additional measurement data and recommendations to the NPRM.

After issuing the NPRM, NHTSA continued to collect measurement data on newly purchased jackets to check whether the dimensions and tolerances proposed were being met by SAE jackets already in the field. For the final rule, the agency also examined all measurement data provided by the commenters.

The HIII-5F chest jacket is a sleeveless foam-filled vinyl zippered jacket that represents human flesh, including female breasts. The chest jacket is zipped onto the underlying dummy and covers the entire thorax, including the shoulder assembly. The HIII-5F was added to part 572 in 2000. 7 The HIII-5F is used in frontal compliance crash tests and air bag static deployment tests, certification to which is required for certain vehicles by FMVSS No. 208, Occupant crash protection.

The HIII-5F dummy is described in 49 CFR part 572, subpart O. This subpart contains regulatory text describing the qualification procedures and requirements for the dummy. Subpart O also incorporates several other documents by reference. Those documents describe the physical make-up of the dummy, and include a parts list, a set of engineering drawings, and a document entitled, Procedures for Assembly, Disassembly, and Inspection (PADI). 8

The NPRM proposed changes to the chest jacket specifications to address known issues with the shape and availability of the jacket.

The chest jacket, along with the HIII-5F, was developed under the auspices of SAE. When subpart O was created in 2000, jackets for the HIII-5F were being produced solely by FTSS. Soon thereafter, Applied Safety Technologies Corporation, which later became Denton, began to manufacture HIII-5F dummies and jackets.

The jackets FTSS and Denton produced did not conform to all aspects of the part 572 specifications; in addition, jackets produced by each manufacturer differed from those produced by the other. 9 The differences between the FTSS and Denton jackets, and between those jackets and the part 572 specifications, are the result of a variety of factors. For one, the subpart O jacket drawing, which consists of two sheets, contains errors and ambiguities. The dimensions for the breast locations are not consistent between the two sheets, and the overall shape is not consistent, either. These inconsistences and ambiguities contributed to dimensional differences between the FTSS and Denton jackets.

In 2003, FTSS submitted a petition for rulemaking to revise the jacket dimensions to correspond to the dimensions of the jackets then being produced by FTSS. 10 NHTSA denied this petition. 11 The agency stated that while dummies with the FTSS and Denton jackets performed somewhat differently from dummies with jackets that conformed with the part 572 specifications, the dimensional differences did not have a significant effect on dummy performance as long as the seat belt was properly positioned. 12

However, studies of the jacket by Transport Canada and the Alliance in the mid-2000s found that FTSS and Denton dummies performed differently in the types of testing specified in FMVSS No. 208. 13 FMVSS No. 208 specifies a variety of different dynamic (crash) and static (out-of-position) requirements using the HIII-5F. 14

These differences between the FTSS and Denton jackets led SAE, in 2006, to establish a task force to develop a harmonized jacket compatible with both companies' versions of the HIII-5F jacket (for ease of reference, referred to in this document as the “SAE jacket”).

In 2010, FTSS and Denton merged to form HIS. The merger meant that HIS became the only significant dummy manufacturer and what had begun as an effort to specify the design of a “harmonized” jacket became an effort for HIS to simply design and produce a jacket that could fit existing Denton and FTSS dummies as well as newly manufactured HIS dummies.

SAE published an information report for the harmonized jacket in 2013 (SAE J2921 JAN2013 supra ). An update to this information report was published in March 2023 (SAE J2921 MAR2023). This update does not alter any of the technical specifications. The J2921 jacket is currently offered for sale by HIS and JASTI-USA, Inc., the U.S. affiliate of JASTI Co., LLC, a manufacturer of dummies and test equipment headquartered in Japan.

The discrepancies among the available jackets brands (principally from FTSS and Denton) can lead to different compliance test results with different jackets. In 2006, the Alliance requested that NHTSA, in its compliance testing program, use the same dummy brand (Denton or FTSS) the vehicle manufacturer used in its certification of a particular make/model. NHTSA adopted this requested practice.

Recent events render this approach of maintaining both FTSS and Denton jackets obsolete and necessitate further action by NHTSA. After the merger of FTSS and Denton, HIS indicated that it would maintain production of the FTSS and Denton brand versions of the jackets so that they could be used as spare parts on the existing FTSS and Denton dummies. 15 However, in 2015 HIS discontinued production of the original FTSS and Denton chest jacket designs and now sells only the SAE jacket, identified as part number 880105-355-H. 16

Over the past few years, NHTSA has received requests from several vehicle manufacturers for NHTSA to conduct its compliance tests using the SAE jacket. NHTSA has asked manufacturers to identify the jacket (Denton, FTSS or SAE) for NHTSA to use in its compliance testing. However, because chest jackets shrink or otherwise fall out of specification or wear out with age, NHTSA's stock of FTSS and Denton jackets is running out, and NHTSA has only a limited supply. The Alliance has informed NHTSA that its members are facing the same issue. Thus, the issues of jacket availability and which jacket designs are acceptable for use in compliance tests have become more urgent.

The development of the SAE jacket included was a preliminary jacket in 2011 and then a final version in 2013. NHTSA and others tested both versions of the SAE jackets to assess ATD performance with the new components.

The studies compared the dimensions of the jackets and evaluated the performance of dummies fitted with the jackets in different tests (sled tests, out-of-position tests, and some of the subpart O qualification tests). The studies found that dummies fitted with SAE-designed jackets (both the 2011 and 2013 versions) performed essentially the same as dummies fitted with pre-existing FTSS and Denton (non-SAE) jackets with respect to dummy injury metrics and other responses (with one exception). While some common refurbishment may be needed when fitting the jacket onto an older dummy, the tests demonstrated that once an older dummy was retrofitted with a new J2921 jacket, all parts on the dummy conformed dimensionally to the proposed subpart O engineering drawings.

In the NPRM, NHTSA proposed to amend the chest jacket specifications in subpart O's regulatory text to incorporate by reference new versions of the drawing package, parts list and PADI. The proposed changes reflect the J2921 jacket design in which the breast contours are blended more gradually into the torso, compared to the current subpart O design where the breast contours are more sharply defined.

NHTSA proposed to adopt the specifications in SAE J2921 (Figures 4-6 in SAE J2921, which are engineering drawings of the SAE jacket design). However, we also proposed adding additional specifications for the jacket's contour that are not contained in SAE J2921. Our proposed additional specifications for the jacket's contour adds breadth, depth, and circumference dimensions at different section levels of the jacket on the main assembly drawing of the dummy (880105-000, Rev. N, Sheet 5). Dimensions are specified for a jacket fitted/worn on a dummy, i.e., measurements would be recorded on the jacket as fitted/worn on a dummy positioned on the same flat-back bench as what is currently shown on 880105-000, Rev. N, Sheet 5. The additional dimensional specifications were intended to define the outer shape of the thorax and to preclude belt routing discrepancies. The information included additional views of the chest jacket at various cross sections.

In the NPRM, NHTSA tentatively concluded that the proposed jacket specification would ensure uniformity in the form, fit, and function of the HIII-5F. We also tentatively concluded that the proposed jacket specifications would encompass existing jackets that have been built to the SAE J2921 specifications; the proposed specifications were developed in light of such existing jackets.

The spine box of the HIII-5F is the dummy's steel backbone. It is located in the dummy's thorax, which consists of six bands that simulate human ribs. The bands are made of spring steel, and a thick layer of graphite is bonded to each band to provide damping when the bands are deflected, thus giving them humanlike properties. On the posterior aspect of the thorax, the bands are affixed to the spine box. The spine box is currently specified in the parts and drawings document in drawings 880105-1000, and SA572-S28 with call-outs in 880105-300 and the PADI (p. 21).

In the mid-2000s, the SAE Task Force began an effort—in parallel with its efforts on the chest jacket—to find and eliminate a source of signal noise that sometimes emanated from the HIII-5F spine box. Alliance members determined that the noise was caused by loosening of six socket head cap screws attaching the spine box to the lower spine. Due to a design shortcoming, repeated crash testing loosened the screws so that they rattled against the inner walls of the through holes. This rattling led to artifacts in the signals of the accelerometers in the thorax during sled and crash tests. The problem affected FTSS and Denton units alike. Testing laboratories have been addressing this problem by disassembling the dummy and inspecting and tightening the screws routinely.

As a long-term solution, SAE developed an alteration to improve the spine box. Specifically, it recommended adding plates to the side of the spine box, with bolts countersunk into the plate to remove any play from the assembly. The alteration prevents the screws from loosening and eliminates the signal noise. NHTSA and others tested the new spine box fix as it was being developed. In 2011 SAE published an information report for the spine box modification (SAE J2915 AUG2011). This information report was revised in May 2022 (SAE J2915 MAY2022). The updated information report does not contain any technical changes to the design and focuses on minor formatting and typographical changes.

NHTSA's 2011 study and the SAE task force  18 showed that the spine modification had completely eliminated the noise emanating from the chest without affecting the response of the dummy in any other way. The study found that the spine boxes manufactured by different manufacturers were identical, suggesting that the spine box alterations are sufficiently specified. The study also concluded that the spine box was durable (did not loosen over repeated testing).

In the NPRM, NHTSA proposed to change the spine box specifications to permanently fix the signal noise problem. The new versions of the drawing package, parts list, and PADI proposed for incorporation by reference include the SAE J2915 (Jan 2011)  19 specifications for the improved spine box. The proposed revisions would add plates to the side of the spine box, with bolts countersunk into the plate to remove any play from the assembly. The modification would increase the quality of data and reduce maintenance and testing time. The modification would not affect or change the dummy's performance in any way (other than eliminate the potential for noise). 20

After analysis of post-NPRM measurement data and commenters' data, this final rule adopts most of the NPRM's proposed specification with minor changes to ensure a sufficiently low level of variation between jackets fabricated by different manufacturers. The final rule revises the chest jacket and spine box specifications in subpart O that correct previous errors and ambiguities. A summary of the engineering changes is outlined in section VI and a full discussion of the engineering changes to the HIII-5F dummy, as discussed in this final rule, is found in a separate document docketed. 21

For the jacket, the agency updates the values of some jacket dimensions to reflect more closely the larger pool of measurement data acquired since the NPRM. We also increase the dimensional tolerances in several places because the proposed tolerances were unnecessarily small. Additionally, a limited number of dimensions are revised to become “reference only” dimensions (which are useful during inspections) because the larger pool of data revealed that there were not consistent reference measurement points associated with them. Such “reference only” measurements are not required to be met by a compliant dummy. The additions and changes to the NPRM specifications will ensure uniformity in the form, fit, and function of the HIII-5F. 22

For the spine box, NHTSA adjusts the mass specification slightly to reflect additional material that is added. No other changes are made for the spine box outside of the modification of the mass specification. 23

Consistent with the NPRM, NHTSA has decided not to incorporate the mandrel  24 or the fit check procedure outlined in J2921. This final rule's updates to subpart O provide the necessary dimensions for the jacket. If there is a concern regarding shrinking of the jacket, measurements can be taken to confirm dimensionality. It would be up to the individual measurement taker whether to utilize the mandrel as part of the jacket fit check. In the Alliance's supplemental submission to NHTSA, the Alliance clarified that it was not requesting that the agency specify use of the mandrel. In the NPRM, the agency tentatively decided not to incorporate the mandrel or the fit check procedure outlined in J2921 and asked for comments on the mandrel. Commenters recommended using the mandrel when taking measurements of the jacket dimensions. NHTSA disagrees with the need to include a mandrel. Both the NPRM and post-NPRM analyses have been shown to meet the dimensional requirements by recording measurements on unworn jackets that were set up in the specified configuration without use of the mandrel. We recognize that when the proposed jacket is used on an existing dummy, the dummy may require some amount of re-tuning or refurbishment to pass the part 572 subpart O qualifications tests, but this need is common when worn parts are replaced. As SAE mentioned, the mandrel was intended to be used only to test the fit of the jacket as the jacket ages. As such, the mandrel can be used as an optional inspection device.

Overall measurement data confirms that the proposed and final rule jacket specifications encompass existing jackets that have been built to the SAE J2921 specifications. Therefore, the final rule effectively remains the same as the proposed rule.

After the NPRM publication, NHTSA continued to collect measurement data on newly purchased jackets to check whether the dimensions and tolerances proposed (including those derived from J2921 drawings and the new section dimensions added by NHTSA) were being met by SAE jackets already in the field. We also examined all measurement data provided by the commenters. Here, we provide a summary of the measurement and final rule changes. A full discussion of the process and the data collected can be found in a separate document being placed in the docket for this rulemaking. 25

In defining the jacket in the NPRM, we proposed “unworn” dimensional requirements and “worn” dimensional requirements. The “unworn” dimensional measurements are taken on the jacket as a standalone component on the benchtop, while the “worn” measurements are taken on the underlying dummy. Additional measurements were included to our pool of “worn” and “unworn” data. 26 From this body of data, the final rule largely adopted the proposal with adjusted dimensions and tolerances to ensure that jackets in the field achieve an acceptable degree of conformity while still assuring a high level of uniformity.

For the “unworn” requirements, we are replacing the old, 2002 part 572 subpart O engineering drawings of the jacket with new drawings based on the drawings contained within SAE J2921. For the “worn” requirements, we specify additional dimensional requirements for the jacket's contours that are not contained in SAE J2921. They include dimensions for the jacket's breadth, depth, and circumference at different section levels. Detailed specification changes are described in the January 2023 Engineering Changes document. 27

The drawings containing the “unworn” measurements have several updates to account for a larger set of data. 28 Updates have also been made to create reference dimensions for some measures. Review of the data provided in comments to the NPRM revealed that HIS had not reported all of the dimensional measurements of the jacket. Of the “unworn” dimensional data that HIS reported, HIS data were shown to be within the tolerances specified closely with the final rule. 29 In other words, the additional NHTSA measurements and the October HIS data, when viewed independently, both confirm each other.

The shape and configuration of the jacket defined in the final rule is identical to that of the engineering drawing contained within SAE J2921. As noted previously, NHTSA's engineering drawing incorporates several additional “unworn” dimensions that are needed to fully specify the jacket and preclude variations between future jackets fabricated by different manufacturers. NHTSA's additional dimensional requirements include arm hole specifications and reference (ref) dimensions for the breast location.

The “worn” dimensional requirements have four section levels specified for the jacket when fitted on the underlying HIII-5F dummy positioned on the same flat-back bench as what is currently shown on 880105-000, Rev. J, Sheet 5. The dimensional specifications define the outer shape of the thorax to preclude belt routing discrepancies that were the source of the thorax deflection differences described above. The requirements are also needed to ensure a sufficiently low level of variation between future jackets fabricated by different manufacturers.

The final rule updates the tolerances for the breadth and circumference measurements. With a few exceptions, all existing new SAE jackets were demonstrated to be within the dimensional requirements in the final rule. The final rule demonstrates that current SAE jackets now in the field conform to the new subpart O dimensional requirements. However, the final rule does not guarantee that all new jackets will fit properly on all underlying HIII-5F units. Similar to all other device measurements, diligence is needed to select a jacket for a particular dummy to ensure that all jacket-on-dummy requirements are met. NHTSA reviewed the provided data from HIS regarding the “worn” measurements and noted some recurring inconsistencies with NHTSA's own data. 30

In the NPRM, we sought comment on the proposed specifications, including the dimensions not specified in the SAE J291 report. We sought information and data on whether existing jackets built to SAE J2921 on existing dummies will meet the proposed specifications. NHTSA also sought comment on what (if any) additional information, such as tolerance specifications, is needed to fully specify the jacket to ensure that jackets produced by different manufacturers perform equivalently. We also sought comment on the proposed approach of specifying dimensions for the jacket as fitted on a dummy, including whether additional subpart O qualification tests are necessary.

Section IV addresses the specific dimensional specifications based on post-NPRM measurement data analysis. This section will focus on the commenters' specific approach of specifying jacket dimensions. Further discussion of the comments can be found in a separately docketed document. 31

The mandrel was developed and described in the SAE information report (SAE J2921) describing the harmonized jacket. In the SAE report, it was noted that the jackets tend to shrink over time. The mandrel was developed to assess jacket fit as it ages. There are reference marks on the back, bottom, and top of the mandrel that serve as indicators that the jacket has shrunk to the point where a replacement is recommended.

In the NPRM, NHTSA considered the need for the mandrel and tentatively decided not to incorporate the mandrel in the fit check procedure outlined in SAE J2921, but did request comment.

In response to the NPRM, comments recommended a new use of the mandrel, outside of the initial design. Both HIS and the Alliance commented that the mandrel should be incorporated and used for taking dimensional measurements of the jacket. Concerns were raised regarding some of the measurements to be taken when the jacket is zipped onto the underlying dummy (worn) and difficulty in reliably obtaining those measurements. These concerns were based on the need to measure the jacket and obtain dimensional measurements within the tolerances. Commenters recommended the use of the mandrel as a tool to constrain the torso and take all measurements on/with the mandrel. The commenters noted that the mandrel would provide a repeatable means to set up the jacket for dimensional measurement. Commenters cited a need to have the mandrel to ensure jacket measurement consistency and cited poor Gage repeatability and reproducibility when the mandrel was not used.

The use of the mandrel for taking dimensional measurements of the jacket represents a new use for the mandrel and was not part of the petition for rulemaking. The Alliance's supplemental submission to NHTSA clarified that it was not requesting that the agency specify the use of the mandrel. 32 The NPRM sought comments on the mandrel's use in SAE J2921. The SAE J2921 design used the mandrel for a fit check when the jacket has shrunk. The comments received proposed using the mandrel in a new way: to take dimensional measurements of the jacket in lieu of placing the jacket on the underlying dummy.

There are several technical reasons why the mandrel is not adopted in the final rule. Overall, NHTSA disagrees with the need for a mandrel to meet the final jacket measurement specifications but agrees it can be used as an optional inspection device. When the jacket is being prepared for testing, entities subject to FMVSS testing are free to use the mandrel as an inspection device for shrinking of the jacket or when configuring the unworn jacket before taking certain measurements. However, NHTSA will not include the mandrel in subpart O nor will it specify use of the mandrel.

Based on NHTSA's overall assessment of the data provided, the agency believes that the “worn” and “unworn” dimensions specified in the final rule remain sufficient for a determination of acceptable jacket size, without the need for a mandrel. NHTSA was able to record all the measurements in both a “worn” and “unworn” state for the dummy within tolerances, except for a few instances.

The purpose of an engineering drawing is to record and convey the dummy's requirements which is to be used in FMVSS testing. The drawings must include sufficient information to enable production planning, manufacture, assembly, testing, and inspection of individual parts and assemblies. The entire jacket-on-dummy assembly is specified by part 572, not just the individual parts. The jacket itself is made of a flexible material that is placed over the underlying dummy. The contour locations of the jacket relative to a vehicle shoulder belt are affected by the underlying structure of the dummy. Thus, those dimensions are specified on the assembly drawing of the dummy, known as “worn” dimensions when the jacket is fitted/zipped on the underlying dummy structure. It is important for the drawings to include the underlying dummy, to ensure that the external dimensions of the assembled dummy are consistent and within tolerance. Checking dimensional measures when the jacket is off the underlying dummy, even with the use of the mandrel, is not sufficient.

In addition to exterior dimensions of the full dummy assembly, individual parts are also specified on separate engineering drawings. The part drawings specify the construction and material of the jacket. They also specify jacket dimensions that do not depend on the underlying dummy. These dimensions are referred to as the “unworn” dimensions. For the jacket, the “unworn” dimensions, together with the “worn” assembly dimensions, are needed to ensure uniformity of the dummy as a whole. A separate jacket drawing is needed, just as separate drawings for other parts are needed. Thus, it is appropriate to have dimensions for the jacket on separate jacket-only drawings in the “unworn” condition.

NHTSA analyzed both our own data and the commenters' data. Both datasets have shown that the finalized specifications were achieved consistently within the tolerance ranges. Thus, the specifications ensure that current and future chest jackets will have sufficient uniformity. Notably, NHTSA's own measurements were recorded without the aid of a mandrel and still met the final rule specifications. This result confirms the validity of NHTSA's specifications without the use of mandrel. NHTSA's analysis of its post-NPRM data and commenters' measurement data is further detailed in section IV.

The use of the mandrel, if implemented in subpart O, would require new drawings with dimensions and tolerances to properly and repeatably specify the mandrel. This need would likely create new discrepancies. While J2921 depicts a drawing of the mandrel, it does not provide details or dimensions on the shape of the mandrel. Also, neither J2921 nor the commenters provided an objective fit criterion for a mandrel or mandrel-specific test procedure. Without the exact specification of the mandrel, contrary to the commenters' suggestion, the introduction of a new device here would create more variation for the jacket.

NHTSA also disagrees with the commenters' use of Gage repeatability and reproducibility (Gage R&R) analysis as further support that a mandrel is needed. A gage is a device used to obtain measurement. Here, a mandrel is described by SAE as a fit check device, not a measurement device. The purpose of a Gage R&R analysis is to assess the quality of the measurement system if there is reason to believe the measurement discrepancy is due to the measurement device itself. Because NHTSA's proposed and final specification of dummy parts and assemblies does not introduce a new measurement device, NHTSA did not perform a Gage R&R. Analysis of Gage R&R is further discussed under the agency's response to comment section on the use of another measurement device.

It is important to note that just because a measurement is not within tolerances, it does not necessarily mean that the jacket is out of specification or cannot be used. For the “worn” dimensions in particular, the dimensions are affected by how the jacket is placed over the underlying dummy structure. If the specified dimensions are not met initially, the jacket can be adjusted and the measurements taken again. Note 7 on drawing 880105-000, Complete Assembly, confirms this possibility: “If the z-coordinates of the A-Pts are not within 5 mm of the target height of 10.23 in. (265 mm), re-seat the jacket be rolling it fore/aft against the shoulder to move the z-coordinate closer to the target height while maintaining the position of the H-point. The re-seated jacket shall rest in contact with the underlying shoulder pads with no gap between the pads and the jacket or between the pads and the clavicle castings.”

The Alliance recommended the use of the mandrel as part of the jacket production process. Specifically, the Alliance noted that the jacket should be certified by its manufacturer on the mandrel and using a 3D measurement device such as a Faro arm.

Dummy jacket certification requirement is not within NHTSA's authority and role. NHTSA does not certify the ATDs specified in part 572, nor does NHTSA certify any of the components used in the ATDs. NHTSA specifies the ATDs in part 572 used for FMVSS testing. Part 572 specifications lay out the technical aspects of the ATD. ATD manufacturers produce the ATD and can choose to make a dummy meeting those specification. Then, under the self-certification process, motor vehicle original equipment manufacturers (OEMs) self-certify compliance with applicable FMVSS—in this case, FVMSS No. 208. 33 OEMs could choose to incorporate a mandrel as part of their certification process.

HIS and the Alliance recommended an annual check of jackets by users with a measurement of eight critical dimensions on the mandrel. These eight critical measurements would check for shrinkage that could occur over time as a jacket ages.

While the final rule is not including the mandrel as part of the fit check procedures to the HIII-5F jacket specification, OEMs and testing labs are not prohibited from using the mandrel as an optional device part of their routine inspection process.

Part 572 specifies the parts used on the dummy, but it does not specify any maintenance schedule or discuss any states of disrepair. Generally, other than the specifications in PADIs, there are no annual inspection criteria included. NHTSA will not be including additional inspection parameters as part of the PADI.

HIS and the Alliance recommended that NHTSA stipulate that all measurements should be recorded using a digital Faro arm, or equivalent Coordinate Measuring Machine (CMM) system. HIS reasoned that measurements taken by standard gages are not sufficiently definitive, as evidenced by poor Gage repeatability and reproducibility results.

Specification of a specific measurement technique, such as the use of a CMM system, is not included in part 572. Part 572 defines the dimensions of the dummy and provides the PADI and qualification procedures to ensure it is responding as expected. Part 572 does not dictate the equipment used to take those measurements. Nonetheless, NHTSA carried out an assessment by comparing operator measurements of multiple jackets using basic levels and calipers vs. the more sophisticated Faro arm. 34 A Faro arm is a digital device that records precise three-dimensional coordinates. It is a brand name for a type of CMM. 35 The digital measurement device often provides a more precise means to record measurement but such a device may not always be available.