This proposal affecting 7 CFR part 1217 (herein the “Order”) is authorized under the Commodity Promotion, Research, and Information Act of 1996 (1996 Act) (7 U.S.C. 7411-7425).

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules and promoting flexibility. This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review. Additionally, because this rule does not meet the definition of a significant regulatory action, it does not trigger the requirements contained in Executive Order 13771. See OMB's Memorandum titled “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017, titled `Reducing Regulation and Controlling Regulatory Costs' ” (February 2, 2017).

This action has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. The review reveals that this regulation would not have substantial and direct effects on Tribal governments and would not have significant Tribal implications.

This proposal has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect. Section 524 of the 1996 Act (7 U.S.C. 7423) provides that it shall not affect or preempt any other Federal or State law authorizing promotion or research relating to an agricultural commodity.

Under section 519 of the 1996 Act (7 U.S.C. 7418), a person subject to an order may file a written petition with USDA stating that an order, any provision of an order, or any obligation imposed in connection with an order, is not established in accordance with the law, and request a modification of an order or an exemption from an order. Any petition filed challenging an order, any provision of an order, or any obligation imposed in connection with an order, must be filed within two years after the effective date of an order, provision, or obligation subject to challenge in the petition. The petitioner will have the opportunity for a hearing on the petition. Thereafter, USDA will issue a ruling on the petition. The 1996 Act provides that the district court of the United States for any district in which the petitioner resides or conducts business shall have the jurisdiction to review a final ruling on the petition, if the petitioner files a complaint for that purpose not later than 20 days after the date of the entry of USDA's final ruling.

This proposal invites comments on a proposal to amend the Order by increasing the assessment rate from $0.35 to $0.41 per mbf of softwood lumber shipped within or imported into the United States. The Order is administered by the Board with oversight by the USDA. Under the program, assessments are collected from domestic manufacturers and importers and used for research and promotion projects designed to strengthen the position of softwood lumber in the marketplace. The additional funds would enable the Board to maintain its existing programs, while supporting new programs that would help maintain and expand markets for softwood lumber. This proposal would also add the conversion factor for square meters to board feet and make one conforming change.

The Order specifies that the funds to cover the Board's expenses shall be paid by assessments on manufacturers for the U.S. market, other income of the Board, and other funds available to the Board. Domestic manufacturers pay assessments based on the volume of softwood lumber shipped within the United States and importers pay assessments based on the volume of softwood lumber imported to the United States. Assessments are collected per mbf of softwood lumber, except that no entity shall pay an assessment on the first 15 million board feet (mmbf) of softwood lumber otherwise subject to assessments in a fiscal year. Domestic manufacturers are required to remit to the Board assessments owed no later than 30 calendar days of the month following the end of the quarter in which the softwood lumber was shipped. Importers are responsible for paying assessments to the Board on softwood lumber imported into the United States through the U.S. Customs and Border Protection (CBP). If CBP does not collect an assessment from the importer, the importer is responsible for paying the assessment to the Board no later than 30 calendar days of the month following the end of the quarter in which the softwood lumber was imported. Domestic manufactures and importers must also remit to the Board required reports. The Order also provides for exemptions from assessments. Section 1217.53 specifies that U.S. manufacturers and importers that domestically ship and/or import less than 15 mmbf annually, exports of softwood lumber from the United States, and shipments and imports of organic softwood lumber are exempt from the Order's assessment requirements.

Pursuant to § 1217.52, and subject to the exemptions specified in § 1217.53, each domestic manufacturer and importer shall pay an assessment rate of $0.35 per mbf of softwood lumber, except that no entity shall pay an assessment on the first 15 mmbf of softwood lumber otherwise subject to assessment in a fiscal year. The Board may recommend to the Secretary a change in the assessment rate as it deems appropriate by at least a majority of Board members plus two (exclusive of vacant seats). The assessment rate may not be less than $0.35 per mbf nor more than $0.50 per mbf.

The $0.35 per mbf assessment rate has been in effect since the program's inception in 2011. The Board's fiscal year runs from January 1 through December 31. Board expenditures for the five-year period from 2014-2018 have ranged from a low of $12.35 million in 2014 to a high of $15.32 million in 2016; expenditures in 2018 were $14.23 million. Program expenditures averaged $12.96 million during those five years, with annual expenditures averaging $3.29 million (24 percent) for research conducted on wood standards; $4.06 million (29 percent) on a communications program, which includes continuing education courses for architects and engineers; and $3.94 million (28 percent) on a construction and design program that provides technical support to architects and structural engineers about using wood. Pursuant to § 1217.50(h), administrative expenditures have been under 8 percent of the assessments collected and other income received by and available to the Board for the fiscal year.

Board assessment income has ranged from $12.55 million in 2014 to $13.74 million in 2018. About 70 percent of the assessment income is from domestic manufacturers and 30 percent is from importers. Additionally, pursuant to § 1217.50(i), the Board maintains a monetary reserve with funds that do not exceed one fiscal period's budget. This proposal would also amend § 1217.52(h) to add the conversion factor for square meters to board feet. Currently, the Order provides a factor used to convert cubic meters of imported softwood lumber into the equivalent volume of thousands of board feet, thus enabling the Board to calculate appropriate assessments. Softwood lumber is also being imported in square meters. Adding a conversion factor for square meters would better reflect current industry practices and facilitate the administration of the program.

Finally, this proposed rule would make a conforming change to § 1217.52(c) to reflect previously revised voting requirements in § 1217.44. In a final rule published in the Federal Register on September 25, 2019 (84 FR 50294), voting requirements prescribed in § 1217.44 were revised to specify that recommendations to change the assessment rate require affirmation by at least a majority of Board members plus two (exclusive of vacant seats). Currently, corresponding language in § 1217.52(c) specifies that an affirmative vote of at least two-thirds of Board members is required for assessment rate recommendations. A conforming change in this proposed rule would revise § 1217.52(c) to require affirmation of assessment rate recommendations by a Board majority plus two, thus harmonizing the language in the two sections related to assessment recommendations.

The Board met on November 20, 2019 and recommended increasing its assessment rate from $0.35 to $0.41 per mbf. The additional funds would enable the Board to maintain its existing programs, while supporting new programs that would help maintain and expand markets for softwood lumber. For the 2016-2018 fiscal years, the Board has used reserve funds to bridge the deficit between income and expenses. In 2019, the Board kept expenditures in line with income and had to make cuts to its programs, primarily its communications program. The Board discussed the deficit spending that occurred from 2016-2018 and the funding cuts in 2019, along with the impacts of inflation, and determined that without the increase it would not be able to maintain its current programs nor be able to address gaps that limit the Board's ability to expand the market for softwood lumber. Continuing at the current funding level would limit its ability to capitalize on new opportunities or address challenges and maintain the impact the Board has achieved for the softwood lumber industry in prior years. Additionally, the current funding level restricts the ability to accelerate softwood lumber's increase in market share and lumber usage in the non-residential sector.

The Board's funding of research on wood standards has facilitated interest in using wood-based building systems in non-traditional markets, such as tall wood building. The 2021 International Code Council building standards will recognize the construction of mass timber buildings up to 18 stories in height. These new opportunities require a more comprehensive approach, particularly in outreach and education initiatives. The Board recognized that its funded programs must go beyond inspiring professionals to think about building with wood. These individuals need resources and technical assistance.

The Board estimated the proposed increased assessment rate of $0.41 per mbf would generate additional revenues as shown in Table 1. The consumption forecast and assessable board feet figures are shown in billion board feet (bbf).

The additional funds would support programs targeting contractors and developers to address installer training and skills development; establish an education program that would target architecture and engineering students, as well as professionals; and restore the Board's communications program budget so that by 2025 it would be equivalent to 2018 expenditures. Therefore, the Board recommended increasing the assessment rate in the Order from $0.35 to $0.41 per mbf. USDA accepts and agrees with the Board's reasoning for increasing the assessment rate. Accordingly, USDA proposes to amend § 1217.52(b) to specify a $0.41 per mbf assessment rate.

In accordance with the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) is required to examine the impact of the proposed rule on small entities. Accordingly, AMS has considered the economic impact of this action on such entities.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to the actions so that small businesses will not be disproportionately burdened. The Small Business Administration (SBA) defines, in 13 CFR part 121, small agricultural service firms (domestic manufacturers and importers) as those having annual receipts of no more than $8 million. 1

The Random Lengths Publications, Inc.'s yearly average framing lumber composite price was $356 per mbf in 2019. Dividing the $8 million threshold that defines an agricultural service firm as small by this price results in a maximum threshold of 22.5 million board feet (mmbf) of softwood lumber per year that a domestic manufacturer or importer may ship to be considered a small entity for purposes of the RFA. Table 2 shows the number of entities and the amount of volume they represent that may be categorized as small or large based on the SBA definition.

As shown in Table 2, there are a total of 1,396 domestic manufacturers and importers of softwood lumber based on 2019 data. Of these, 1,000 entities, or 72 percent, shipped or imported less than 22.5 mmbf and would be considered small under the SBA definition. These 1,000 entities domestically manufactured or imported 3.25 billion board feet (bbf) in 2019, less than 5 percent of total volume.

While this action would increase the assessment obligation on domestic manufacturers and importers from $0.35 per mbf to $0.41 per mbf, the impact on these entities would be minimal and uniform. The current assessment rate of $0.35 per mbf represents 0.1 percent of the Random Lengths 2019 average framing lumber composite price of $356 per mbf. The proposed assessment rate of $0.41 per mbf is 0.12 percent of this price. The increase in assessment rate represents an increase in cost to domestic manufacturers and importers of two-thousandth of one percentage point relative to their average received price. This cost, though minimal, would also be offset by the benefits derived from the program.

The 1996 Farm Bill requires that Research and Promotion programs be evaluated every five years with the specific goal of measuring the economic impact of commodity promotion on demand for the commodity. The Board completed its first five-year evaluation of program effectiveness in 2016. The five-year evaluation, conducted by Prime Consulting, found that softwood lumber use per square foot increased nearly 23 percent among architects and structural engineers from the program's inception in 2011 to 2015. The evaluation also found a cumulative return on investment (ROI) of more than $15 in increased sales of softwood lumber per $1 spent on promotion by the program between 2012 and 2015. The cumulative ROI was updated in 2019 to reflect the time period of 2012 to 2018. The result was a return of more than $23 in increased sales per $1 spent on promotion.

This proposal invites comments on amending § 1217.52(b) to increase the assessment rate from $0.35 to $0.41 per mbf. The Order is administered by the Board with oversight by the USDA. Under the program, assessments are collected from domestic manufacturers and importers and used for research and promotion projects designed to strengthen the position of softwood lumber in the marketplace. The additional funds collected at the proposed rate would enable the Board to maintain its existing programs, while supporting new programs that would help maintain and expand markets for softwood lumber. This proposal would also amend § 1217.52(h) to add the conversion factor for square meters to board feet and make one conforming change to section 1217.52(c) regarding voting requirements.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the information collection and recordkeeping requirements that are imposed by the Order have been approved previously under OMB control number 0581-0093. This proposed rule would not result in a change to the information collection and recordkeeping requirements previously approved and would impose no additional reporting and recordkeeping burden on domestic manufacturers and importers of softwood lumber.

As with all Federal promotion programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this proposed rule.

Regarding alternatives, the Board considered maintaining the current assessment rate. However, a majority of Board members determined that an increase was needed to adequately support existing programs and fund new initiatives. The Board discussed increasing the assessment at its meeting in November 2018, but after much consideration it determined it was not the right time for the industry to make such a recommendation. In 2019, with the reduction of assessment revenue and the program cuts that were made, the Board again considered the merits of increasing the assessment rate. This was discussed at several Board committee meetings, including meetings of the Executive Committee on September 17, 2019 and November 19, 2019, and the Finance Committee on November 19, 2019. The Board also considered rates of $0.39 and $0.50 per mbf. After much discussion at committee meetings and with the full Board, the Board recommended increasing the rate from $0.35 to $0.41 per mbf.

AMS has performed this initial RFA analysis regarding the impact of this proposed action on small entities and invites comments concerning potential effects of this action.

USDA has determined that this proposed rule is consistent with and would effectuate the purposes of the 1996 Act.

A 60-day comment period is provided to allow interested persons to respond to this proposal. All written comments received in response to this proposed rule by the date specified will be considered prior to finalizing this action.

For the reasons set forth in the preamble, 7 CFR part 1217, is proposed to be amended as follows:

DOE proposes to incorporate by reference the following additional industry standards into 10 CFR part 430:

ASME A112.18.1-2012, “Plumbing supply fittings,” approved December 2012.

ASME A112.18.1-2018, “Plumbing supply fittings,” approved July 2018.

Copies of A112.18.1-2018 can be obtained from the American Society of Mechanical Engineers, 1828 L St., NW, Suite 510, Washington, DC 20036-5104; (800) 843-2763, or go to https://www.asme.org/codes-standards/find-codes-standards/a112-18-1-csa-b125-1-plumbing-supply-fittings.

See section III.N of this document for a more detailed discussion of this industry standard.

Title III of EPCA (42 U.S.C. 6291, et seq. ) sets forth a variety of provisions designed to improve energy efficiency and, for certain products, water efficiency. 1 Part B of Title III, which for editorial reasons was redesignated as Part A upon incorporation into the U.S. Code (42 U.S.C. 6291-6309, as codified), establishes the “Energy Conservation Program for Consumer Products Other Than Automobiles,” which includes showerheads, the subject of this proposed rulemaking. (42 U.S.C. 6292(a)(15))

Under EPCA, the energy conservation program consists essentially of four parts: (1) Testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures. The testing requirements consist of test procedures that manufacturers of covered products must use as the basis for (1) certifying to DOE that their products comply with the applicable energy and water conservation standards adopted under EPCA (42 U.S.C. 6295(s)), and (2) making representations about the efficiency of those products (42 U.S.C. 6293(c)). Similarly, DOE must use these test procedures to determine whether the products comply with any relevant standards promulgated under EPCA. (42 U.S.C. 6295(s))

EPCA states that the procedures for testing and measuring the water use of showerheads shall be ASME/ANSI  2 standard A112.18.1M-1989, “Plumbing Fixture Fittings.” EPCA further specifies that if ASME/ANSI revises these requirements, the Secretary shall adopt such revisions if they conform to the basic statutory requirements for test procedures. (42 U.S.C. 6293(b)(7)) The most recent version of the ASME/ANSI standard, A112.18.1M-2018, was adopted in 2018.

EPCA defines a showerhead simply as “any showerhead (including a handheld showerhead), except a safety shower showerhead.” In addition to defining “showerhead,” EPCA established a maximum water use threshold of 2.5 gallons per minute (“gpm”) applicable to “any showerhead.” Both the definition of showerhead and the 2.5 gpm standard were added to EPCA by the Energy Policy Act of 1992 (Public Law 102-486; Oct. 24, 2991, “EPAct 1992”). From 1992 to 2013, DOE regulations did not contain a separate definition of “showerhead.”

DOE issued a notice of availability of a proposed interpretive rule relating to the definition of showerhead in May 2010. (75 FR 27926; May 19, 2010) In the proposed interpretive rule, available at https://www.regulations.gov/document?D=EERE-2010-BT-NOA-0016-0002, DOE noted that the design of showerheads had diversified into a myriad of products marketed under names such as waterfalls, shower towers, rainheads and shower systems. DOE intended the proposed interpretive rule to address “uncertainty” in how the EPCA definition of showerhead and the 2.5 gpm water conservation standard apply to such products. The proposed interpretive rule sought comment on DOE's proposed interpretation of the term “showerhead” to mean “any plumbing fitting designed to direct water onto a bather,” including a fitting that comprises a set of showerheads, as conventionally understood ( i.e., a set of accessories that each spray water onto a bather). Under this interpretation, the Department would find a “showerhead” ( i.e., a fitting comprising multiple showerheads) to be noncompliant with EPCA's maximum water use standard if the showerhead's standard spraying “components,” operating in their maximum design flow configuration and when taken together, use a total in excess of 2.5 gpm, even if each spraying component individually does not use an amount that exceeds 2.5 gpm. Id.

DOE did not finalize the proposed interpretive rule. Instead, DOE withdrew the draft interpretive rule from review by OMB and in 2011 issued enforcement guidance that achieved essentially the same result. (See https://www.energy.gov/sites/prod/files/gcprod/documents/Showerhead_Guidancel.pdf ). 3 The Department stated in the enforcement guidance that multiple spraying components, when sold together as a single unit designed to spray water onto a single bather, constitute a single showerhead for purposes of compliance with the 2.5 gpm standard. The guidance did not apply to tub spouts, locker room showers, or emergency showers, or to handheld showers where the sprayer cannot run at the same time as the main nozzle. To determine whether a showerhead complied with the standard, DOE would measure a showerhead's water use by turning on all of the unit's sprays and nozzles to their maximum flow settings. Id. In issuing the guidance, DOE stated its view that the term “any showerhead” was sufficiently clear that no interpretive rule was needed. The Department also stated its view that this interpretation was consistent with both the industry standard incorporated into EPCA and the plain language and intent of Congress in establishing a maximum water use requirement for showerheads. Because manufacturers had developed the “myriad of products” referenced in the draft interpretive rule based on their “apparent misunderstanding” of how to measure compliance with the 2.5 gpm standard, however, DOE provided an enforcement grace period of 2 years from issuance of the guidance for manufacturers to sell any remaining non-compliant multi-nozzle products and adjust product designs to ensure compliance with the standard. Id.

DOE subsequently proposed to change its regulatory definition of showerhead as part of a proposed rule to revise the test procedures for showerheads and other products. (77 FR 31742, 31747-31748; 31755; May 30, 2012) In that proposed rule, DOE proposed to adopt definitions for the terms “fitting” and “accessory”, as well as a definition of “showerhead” that used those terms. Under DOE's proposed definition, all components defined as an “accessory,” or a combined set of accessories, to a supply fitting represented a single covered product that would be required to meet the 2.5 gpm standard established in EPCA.

Specifically, DOE proposed to define an “accessory”, with respect to plumbing fittings, as a component that can, at the discretion of the user, be readily added, removed or replaced. Removal of the accessory will not prevent the fitting from fulfilling its primary function. (77 FR 31742, 31755) DOE proposed to define a “fitting” as a device that controls and guides the flow of water. Id. These definitions were consistent with the ASME definition current at that time, ASME A112-18.1-2011. DOE also proposed to define a “showerhead”; however, it defined that term in a manner different from the ASME definition. Specifically, the ASME standard defined “showerhead” as “an accessory to a supply fitting for spraying water onto a bather, typically from an overhead position.” DOE proposed to define a showerhead as “an accessory, or set of accessories, to a supply fitting distributed in commerce for attachment to a single supply fitting, for spraying water onto a bather, typically from an overhead position.” Id. DOE stated that the definition included body sprays and hand-held showerheads but did not include safety showerheads. 4

In response to comments on the proposed rule, DOE issued a supplemental notice of proposed rulemaking (“SNOPR”) to revise the definitions of showerhead and hand-held showerhead and to remove body sprays from the definition of showerhead. (78 FR 20832, 20834-28835, 20841; Apr. 8, 2013; “April 2013 SNOPR”) Specifically, Kohler Company (“Kohler”) and Sloan Valve Company (“Sloan Valve”) responded to the proposal by recommending that DOE use the definition of showerhead in ASME A112.18.1-2011. The Natural Resources Defense Council (“NRDC”) commented that a showerhead should not be defined as an accessory, and both NRDC and the International Code Council supported including body sprays in the DOE definition. These comments were contrary to comments from the Plumbing Manufacturers International (“PMI”), Moen Incorporated (“Moen”) and Kohler, who stated that body sprays should not be included or considered an accessory because they cannot be readily added or removed by the user. Id. at 78 FR 20834-28835.

In the April 2013 SNOPR, DOE again declined to propose the ASME definition of showerhead. DOE reasoned that the ASME definition did not sufficiently address DOE's regulatory coverage, because it did not specifically include hand-held showerheads or exclude safety showerheads. DOE also revised its proposed definition of showerhead (and hand-held showerhead) so that the term “accessory” would not be included in the proposed definition. DOE instead proposed to use the undefined term “component”. Specifically, DOE proposed to define showerhead as “a component of a supply fitting, or set of components distributed in commerce for attachment to a single supply fitting, for spraying water onto a bather, typically from an overhead position, including hand-held showerheads but excluding safety shower showerheads.” (78 FR 20832, 20841; Apr. 8, 2013) DOE proposed that body sprays not be covered by the DOE definition of showerhead, stating that further study of the issue was needed before it could determine whether to include body sprays in the definition. (78 FR 20832, 20834-20835; Apr. 8, 2013) DOE also considered defining the term “safety shower showerhead” to address the question of which products qualify for exclusion from coverage under EPCA and DOE regulations. DOE noted that the Occupational Safety and Health Administration (“OSHA”) did not define the term, but that certain state regulatory requirements referenced ANSI standard Z358.1, Emergency Eyewash and Shower Equipment, which contains specific design and performance criteria that must be met, such as flow rate and accessibility. DOE stated that these criteria could help develop a definition of safety shower showerhead. Id.

Industry commenters on the April 2013 SNOPR, including Kohler, PMI, NSF International (“NSF”), the International Association of Plumbing and Mechanical Officials, Chicago Faucets, and Moen, stated that DOE should adopt the definition of showerhead in ASME A112.18.1. The majority of these commenters also supported DOE's proposal not to include body sprays within the definition of showerhead. NRDC, the Appliance Standards Awareness Project, and the California Energy Commission did not support removal of body sprays from the definition. These comments are described in DOE's final rule, published in October 2013. (78 FR 62970, 62973; Oct. 23, 2013, “October 2013 final rule”)

After considering these comments, DOE issued a final rule in October 2013 adopting a slightly modified version of the definition set forth in the April 2013 SNOPR. Specifically, DOE defined showerhead in the October 2013 final rule as “a component or set of components distributed in commerce for attachment to a single supply fitting, for spraying water onto a bather, typically from an overhead position, excluding safety shower showerheads.” (78 FR 62970, 62973, 62986; Oct. 23, 2013) DOE continued to include hand-held showerheads within the definition of showerhead. DOE excluded body sprays from the definition but did not finalize the definition of “body spray” set forth in the NOPR. DOE also declined to adopt a definition of “safety shower showerhead” to clarify those showerheads that EPCA had exempted from coverage.

In this proposed rule, DOE proposes to revisit its prior interpretation of the EPCA definition of showerhead and to interpret the term showerhead using the definition of the term in ASME A112.18.1-2018. DOE proposes to define showerhead as follows: “Showerhead means any showerhead (including a handheld showerhead) other than a safety shower showerhead.” This definition restates the statutory definition of “showerhead,” at 42 U.S.C. 6291(31)(D). DOE then proposes to include in its regulations its interpretation of the term “showerhead” to mean “an accessory to a supply fitting for spraying water onto a bather, typically from an overhead position.” This interpretation incorporates the ASME definition.

DOE believes that interpreting the term “showerhead” consistent with the ASME definition is more appropriate than DOE's previous interpretation of “showerhead.” As described in section II.A of this NOPR, DOE recognizes that the statutory definition of the term “showerhead” is ambiguous in key respects. Accordingly, to provide clarity to regulated entities and the public concerning what is meant by the term, DOE proposes to interpret the statutory term “showerhead” using the definition of “showerhead” in ASME A112.18.1-2018. The most current ASME standard continues to define a showerhead as it did in 2011—“an accessory to a supply fitting for spraying water onto a bather, typically from the overhead position.”

Under DOE's proposed definition, each showerhead included in a product with multiple showerheads would separately be required to meet the 2.5 gpm standard established in EPCA. As explained in the discussion that follows, DOE concludes that its proposed interpretation of the term “showerhead” is consistent with Congressional intent in establishing the EPCA definition of “showerhead” and the associated energy conservation standard. DOE's proposal is also consistent with the requirements of the National Technology Transfer and Advancement Act of 1995, Public Law 104-113, section 12(d), Mar. 7, 1996, 110 Stat. 783, as amended by Public Law 107-107, Div. A, Title XI, section 1115, Dec. 28, 2001, 115 Stat. 1241 (“NTTAA”), 15 U.S.C. 272 note, and the associated OMB Circular A-119, which directs Federal agencies to use voluntary consensus standards unless inconsistent with applicable law or otherwise impracticable. 5 In addition, DOE's proposal treats products with multiple showerheads in a manner that is consistent with DOE's treatment of similar products, such as body sprays.

DOE also proposes to define the terms “body spray” and “safety shower showerhead” so that it is clear that these products are not considered showerheads subject to DOE's test procedures and energy conservation standards.

EPCA defines the term “showerhead” generically, and somewhat circularly, to “mean[] any showerhead (including a handheld showerhead), except a safety shower showerhead.” 42 U.S.C. 6291(31)(D). In a May 2010 draft interpretive rule, DOE stated that uncertainty existed in application of the EPCA definition of showerhead and the 2.5 gpm standard to the “myriad of products” marketed under names such as waterfalls, shower towers, rainheads and shower systems. These products had been designed, manufactured, and marketed with knowledge of, and in the 19 years since, the 1992 law that established a definition of showerhead and the applicable 2.5 gpm standard. Less than a year later, in March 2011, DOE published enforcement guidance defining the term showerhead in a manner that deviated significantly from the ASME definition by determining that products with multiple showerheads constitute only one showerhead for purposes of EPCA. In the enforcement guidance, DOE further stated that the term “any showerhead” in EPCA was “sufficiently clear such that no interpretive rule was needed”. DOE reached this conclusion despite DOE's statements in its 2010 draft interpretive rule about a lack of clarity and the development of the market since enactment of the 1992 definition of showerhead. Also despite the supposed clarity in the definition, DOE provided a two year grace period for manufacturers to sell products that the enforcement guidance in effect rendered noncompliant with the standard. DOE's October 2013 final rule then codified in its regulations the showerhead definition set forth in the 2011 enforcement guidance, rendering the guidance unnecessary. Following these developments, the number of multi-headed showerheads in the market decreased significantly from the “myriad of products” cited by DOE in 2010.

A number of considerations support the conclusion that the term “showerhead” in EPCA is ambiguous: (1) DOE's own statements in the May 2010 draft interpretive rule; (2) the long-standing existence of waterfalls, shower towers and similar products on the market; and (3) the two-year grace period DOE provided in the enforcement guidance in recognition of these products. In short, the unadorned statutory definition does not require that the term be construed as DOE had interpreted the term in the 2011 guidance and the October 2013 final rule.

Moreover, the text of the statutory definition itself, in one respect, seems difficult to square with the interpretation set forth in the 2011 guidance and the 2013 final rule. The statute defines the term to “mean[] any showerhead ( including a handheld showerhead ), except a safety shower showerhead.” (Emphasis added.) As a general matter, handheld showerheads are not multiple spraying accessories (or “components,” to use the language of the 2011 guidance and the 2013 rule) but are individual spraying accessories (or “components”). This is an important consideration weighing in favor of DOE's proposed interpretation, and a reason why DOE believes that this interpretation is more appropriate than the alternative set forth in the 2011 guidance and the 2013 final rule. Indeed, assuming arguendo that the term “showerhead” is not ambiguous, DOE proposes to conclude in the alternative that the proposed interpretation set forth herein is the appropriate and correct interpretation of the term. At all events, DOE has authority under the statute to adopt the proposed interpretation.

The Energy Policy Act of 1992 illustrated Congress' intent that DOE adhere to ASME standards. When EPCA was amended in 1992 to define showerhead and to establish a test method and water conservation standard for showerheads, Congress specified that the test method applicable to showerheads is the procedure specified in ASME A112.18.1M-1989. (42 U.S.C. 6293(b)(7)(A)) If that ASME standard is revised and approved by ANSI, DOE is required to amend its test procedures to conform to those revisions unless doing so would be inconsistent with other provisions of EPCA. (42 U.S.C. 6293(b)(7)(B)) In the definition section, immediately preceding the definition of showerhead, Congress also included definitions of ASME and ANSI. 42 U.S.C. 6291(31)(B)-(C). The 2.5 gpm standard required compliance with ASME/ANSI A112.18.1M-1989 with regard to the amount of force needed to remove the flow restrictor from the showerhead. (42 U.S.C. 6295(j)(1)) Even the marking and labeling requirements are required to be consistent with those of ASME A112.18.1M-1989, or a subsequently revised version as appropriate. 42 U.S.C. 6294(a)(2)(E).

Despite Congressional reliance on the ASME standard in developing the provisions of EPAct 1992 with regard to showerheads and direction for DOE to adopt updates to the ASME standard, when DOE established the current definition of “showerhead,” it deviated significantly from the ASME definition by determining that products with multiple showerheads constitute only one showerhead for purposes of EPCA. The current DOE regulatory definition of “showerhead” went beyond the ASME concept of what a showerhead is without any explanation as to why DOE was not following the statutory construct based on ASME. While water conservation is obviously a purpose of EPCA, DOE did not take into account congressional reliance on the ASME standard when DOE determined in its 2011 enforcement guidance what was meant by the term showerhead. While it is true that the ASME standard did not specifically define the term “showerhead” when EPCA was amended in 1992, commenters on DOE's draft interpretive rule and its proposed and supplemental rulemakings made abundantly clear that DOE was going beyond ASME's concept of that term. Moreover, products available on the market between 1992 and issuance of DOE's 2011 enforcement guidance included those with multiple water outlets manufactured to comply with statutory water efficiency standards construed as applying to individual spraying accessories (not to sets of such accessories), suggesting substantial industry reliance on the understanding that this was the appropriate construction of the statutory definition. Given EPCA's reliance on the ASME standard in amending EPCA to prescribe a definition, test procedure, energy conservation standard, and labeling provisions for showerheads, DOE concludes that if Congress had intended to significantly deviate from the ASME definition of what constitutes a showerhead, it would have done so explicitly. It did not. DOE is therefore entitled to give significant weight to the ASME definition in construing and applying the statutory standard, even if DOE is not required to adhere to the ASME definition.

In its prior rulemaking to establish a definition of “showerhead”, DOE proposed to adopt a new definition for the term that it stated was based on the definition included in ASME/ANSI A112.18.1-2011. 77 FR 31747 (May 30, 2012, “May 2012 NOPR”). DOE proposed definitions of “accessory” and “fitting” that were the same as the ASME definitions. In proposing the definition of “showerhead”, however, DOE went beyond the ASME definition of “showerhead.” The ASME standard defined, and continues to define, a “showerhead” as “an accessory to a supply fitting for spraying water onto a bather, typically from an overhead position.” DOE's proposal included the terms “or set of accessories” and “distributed in commerce for attachment to a single” supply fitting. DOE expanded the ASME definition not only, as required by EPCA, to include handheld showerheads and exclude safety shower showerheads (which it did not propose to define), but also to “more clearly define the extent of DOE's coverage for these products”—in other words, to ensure that products with multiple showerheads would be considered a single showerhead for purposes of compliance with the DOE standard, as well as to include body sprays as showerheads. (77 FR 31742, 31747-13748; May 30, 2012)

In response to comments urging DOE to adopt the definition in the industry standard, DOE noted in the April 2013 SNOPR only that the ASME definition did not sufficiently address DOE's regulatory coverage of showerheads to include hand-held showerheads and exclude safety showerheads. (78 FR 20832, 20834; Apr. 8, 2013). DOE did not reference the fact that the ASME definition did not include “set of accessories” or “distributed in commerce for attachment to a single” supply fitting, terms that DOE used to classify products with multiple showerheads as a single showerhead for purposes of compliance with the 2.5 gpm standard. In the April 2013 SNOPR, DOE also proposed not to include body sprays as showerheads pending further investigation of the issue. DOE further proposed to eliminate use of the standard term “accessory” in favor of the undefined term “component”. DOE did not offer an explanation for this change, other than that it was in response to comments. Id. Comments suggesting that DOE not define a showerhead as an accessory indicated that to do so would distinguish body sprays from showerheads and would lead DOE to exclude body sprays from coverage. But an interest in retaining the ability to include body sprays within the regulatory definition of showerhead at some future time should not lead DOE to depart from the term “accessory” that had been, and continues to be, used consistently in the ASME definition. Similarly, DOE now recognizes that defining products with multiple showerheads to constitute a single “showerhead” inappropriately expands the definition of “showerhead” beyond the ASME definition.

In the October 2013 final rule, DOE did not adopt the ASME definition and instead adopted a definition of showerhead with minor changes from that proposed in the April 2013 SNOPR. The definition continued to use the terms “component”, “set of components”, and “distributed in commerce for attachment to a single” supply fitting to ensure that products with multiple showerheads would be considered a single showerhead for purposes of compliance with the 2.5 gpm standard. DOE did not, however, adopt a definition of body spray and did not specifically include body sprays within the definition of “showerhead”. Presumably, this meant that body sprays were not included as showerheads, though the Department's discussion of this point stated only that DOE was not adopting a definition of the term. (78 FR 62970, 62972-62973; Oct. 23, 2013) DOE also did not adopt a definition of “safety shower showerhead”, so the products specifically exempted by Congress remained undefined and subject to DOE's discretion as to what it determined was a safety shower showerhead. Id.

The definition of showerhead adopted by the Department in the October 2013 final rule did not reference the purpose of water conservation, and it was also inconsistent with the ASME standard upon which Congress relied heavily in establishing the definition, test procedures, energy conservation standard, and labeling requirements for showerheads. The current DOE definition—which uses the additional and undefined terms “component,” “set of components” and “distributed in commerce for attachment to a single” supply fitting to include as one showerhead a product with multiple showerheads—is also inconsistent with the requirements of the NTTAA (section 12(d)) and the associated OMB Circular A-119 (available at https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A119/revised_circular_a-119_as_of_1_22.pdf ). As explained previously at the beginning of Section II, the NTTAA and OMB's Circular A-119 direct that Federal agencies use voluntary consensus standards unless inconsistent with applicable law or otherwise impracticable. 6

While Congress did not specifically direct DOE to define showerhead according to the ASME standard, Congress relied on the ASME standard in all of the provisions by which it included showerheads within the scope of DOE's authority—definitions, where Congress specifically defined both ASME and ANSI directly preceding and in the same paragraph as the definition of showerhead, test procedures, labeling requirements and the applicable energy conservation standard. That reliance further suggests that DOE should have considered the directives of the NTTAA and OMB Circular A-119 with regard to the use of voluntary consensus standards in developing its definition. EPCA certainly does not preclude DOE from using such standards; the statutory text of EPCA does not make compliance with the NTTAA, and compliance with OMB Circular A-119, either inconsistent with applicable law or otherwise impracticable.

The Department did not provide discussion of the NTTAA and OMB Circular A-119 in any of its rulemaking documents in support of its decision not to adopt the voluntary consensus standard developed by ASME. This omission may have been a result of DOE's prior conclusion that the term “showerhead” should be read to encompass products that constituted sets of individual showerheads (which it termed variously as sprays, openings or nozzles). However, DOE has reconsidered this issue and proposes to reach a different conclusion, as explained in this proposed rule.

As to practicability, DOE stated in the May 2012 NOPR only that the ASME standard did not clearly exclude safety shower showerheads (which DOE did not propose to define) or include body sprays, and that DOE modified the ASME definition to “more clearly define the extent of DOE's coverage”. (77 FR 31742, 31747; May 30, 2012). DOE's failure to adopt the ASME definition does not appear to have been based on an appropriate analysis of practicability per the NTTAA and OMB Circular A-119.

DOE proposes in this rulemaking to set forth in its regulatory text the definition of showerhead established in EPCA. In particular, DOE proposes to interpret the term using the definition in ASME A112.18.1-2018 (Section 3.1)— “an accessory to a supply fitting for spraying water onto a bather, typically from an overhead position.”

DOE's proposed definition is consistent with EPCA. DOE stated in its 2011 enforcement guidance that it could not “reconcile the view that a showerhead with multiple nozzles is actually multiple showerheads with EPCA's language or intent” and that (in a somewhat circular fashion) “it has always been the Department's view that when Congress used the term `any showerhead' it actually meant ‘any showerhead’—and that a showerhead with multiple nozzles constitutes a single showerhead for purposes of EPCA's water conservation standard.” See Showerhead Enforcement Guidance at 1 (Mar. 4, 2011). https://www.energy.gov/sites/prod/files/gcprod/documents/Showerhead_Guidancel.pdf. The Department had, however, prior to the draft interpretive rule that preceded the enforcement guidance, never provided its view on what was meant by the term “showerhead”. In addition, what the guidance had characterized as “a showerhead with multiple nozzles” could just as rationally, if not more so, be considered multiple showerheads. Looking at the depictions in Figure 1 (taken from page 1 of the 2011 enforcement guidance), a rational person might well have counted three, eight, and three showerheads, respectively, rather than simply one showerhead for each configuration.

And, while one of the purposes of EPCA is to “conserve water by improving the water efficiency of certain plumbing products and appliances” (42 U.S.C. 6201(8)), as noted in section II.B. of this NOPR, EPCA relied on the ASME standard for measuring the water use of showerheads at 42 U.S.C. 6293(b)(7) and included references to ASME and the ASME standard in the definitions related to showerhead at 42 U.S.C. 6291(31), the energy conservation standard at 42 U.S.C. 6295(j), and the labeling requirements at 42 U.S.C. 6294(a)(2)(E). Presumably, if Congress intended to establish a definition of the term “showerhead” significantly more expansive than that contemplated by ASME (which would have eliminated many products then manufactured by the industry), it would have done so explicitly.

DOE also concludes that by referencing the ASME standard in the statute as described in the preceding paragraph, and requiring DOE to update its test procedures in response to action by ASME, Congress was expressing an intent that DOE's actions with regard to showerheads be consistent with those of ASME. As described in section II.B of this NOPR, DOE's definition of showerhead adopted in 2013 was not consistent with ASME's definition in place at that time. Nor is it consistent with ASME's definition in ASME A112.18.1-2018, which was adopted by ASME subsequent to, and presumably with knowledge of, DOE's 2013 rulemaking. This proposal by DOE to harmonize its definition of “showerhead” with that of ASME is meant to ensure that DOE's regulations comport with congressional intent to rely on ASME's standards for specific water-using products, including showerheads.

In addition, EPCA was amended in 1987 to insert a provision into 42 U.S.C. 6295 prohibiting DOE from establishing a new or amended standard under this section if DOE finds that the standard is likely to result in the unavailability of performance characteristics, features, sizes, capacities and volumes substantially the same as those generally available in the U.S. at the time of the finding. See Public Law 1001-2 (Mar. 17. 1987); 42 U.S.C. 6295(o)(4). While DOE is prohibited from taking such an action, Congress can pass subsequent legislation that removes products with certain performance characteristics and features from the market, such as products with multiple showerheads. If Congress had intended to establish a provision in EPCA in 1992 that eliminated these products from the market, it would have done so explicitly given the 1987 amendment. Again, it did not. Nor did the 1992 EPCA provision impliedly repeal the 1987 amendment. See, e.g., Morton v. Mancari, 417 U.S. 535, 551 (1974) (repeals by implication are disfavored; “when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective”), cited in Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1624 (2018).

It is clear that DOE cannot regulate or otherwise act to remove products with certain performance characteristics and features from the market given the prohibition in 42 U.S.C. 6295(o)(4). While DOE did not undertake a standards rulemaking to eliminate products with multiple showerheads, which can easily be viewed as a “feature” for purposes of the EPCA provision (for example, other aspects of products that DOE has identified as features include the window in an oven door and the top loading clothes washer configuration), such an elimination is exactly the outcome of DOE's 2011 enforcement guidance and 2013 regulatory interpretation of the term “showerhead” in EPCA. As discussed earlier in this document, the number of multi-headed showerheads in the market decreased significantly from the “myriad of products” cited by DOE in 2010.

Specifically, in its 2011 enforcement guidance, DOE stated that it interpreted the term “showerhead” in EPCA such that each individual showerhead (alternatively called nozzles, sprays, or openings) in a product with multiple showerheads would need to be turned on for testing to determine compliance as measured by aggregating the water use of all showerheads in the product. As a result, DOE was authorized to take enforcement action against manufacturers of such products that exceed the 2.5 gpm maximum, as measured by aggregating the water use of all showerheads in a product, rather than by applying the 2.5 gpm requirement to each individual showerhead ( See https://www.energy.gov/sites/prod/files/gcprod/documents/Showerhead_Guidancel.pdf ). DOE acknowledged the existence on the market of these multi-showerhead products, reasoning, however, that it may have been the Department's failure to enforce the law for 19 years that led manufacturers to misunderstand the law. As a result, DOE gave manufacturers two years to sell any products that the Department deemed noncompliant. In issuing the 2011 enforcement guidance, it appears that DOE effectively banned the vast majority of products with multiple showerheads from the market. This action runs contrary to the current directives established for DOE by Executive Order 13891, “Promoting the Rule of Law Through Improved Agency Guidance Documents”, issued on Oct. 9, 2019. (84 FR 55235; Oct. 15, 2019). Following issuance of the 2011 enforcement guidance, DOE engaged in a rulemaking to define “showerhead” in a manner that would codify in DOE regulations its effective ban on products with multiple showerheads from the market. (78 FR 62970; Oct. 23, 2013) As an alternative argument for its proposal to change its interpretation of the term “showerhead” in this rulemaking, DOE proposes to conclude that EPCA's prohibition on the removal of product characteristics or features from the market through a standards rulemaking also rendered impermissible DOE's actions to effectively ban these products through a definition in a test procedure rulemaking.

For all of these reasons, considered singly and together, DOE proposes to conclude that its proposed interpretation of the term showerhead is more consistent with congressional intent in establishing the definition of the term “showerhead” and the associated energy conservation standard. DOE's proposed definition also complies with the congressional directive to preserve performance characteristics and features that were available on the market at the time the Department originally acted to eliminate them. DOE seeks data and information on any basic models or shipments of showerheads with multiple heads manufactured prior to issuance of DOE's 2011 enforcement guidance, or data and information on basic models or shipments of such showerheads currently on the market, or basic models that manufacturers may be planning to introduce.

DOE has also considered the requirements of the NTTAA and OMB Circular A-119 in developing its proposed definition. The NTTAA and OMB Circular A-119 require DOE (and all other Federal agencies) to use voluntary consensus standards in lieu of government-unique standards in their regulatory activities, except where inconsistent with law or otherwise impractical. ( See Pub. L. 104-113, section 12(d), Mar. 7, 1996, 110 Stat. 783, as amended by Pub. L. 107-107, Div. A, Title XI, section 1115, Dec. 28, 2001, 115 Stat. 1241 (“NTTAA”), 15 U.S.C. 272 note https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A119/revised_circular_a-119_as_of_1_22.pdf ). As described earlier in this section, DOE has initially concluded that its proposed definition, which is the same as the ASME definition, is compliant with EPCA. DOE has also initially determined that it is practicable to adopt the ASME definition. The ASME definition is well understood by showerhead manufacturers. In addition, contrary to DOE's reasoning in the prior rulemaking, it is not necessary that the ASME definition specifically exclude safety showerheads, because EPCA already does so. In this rulemaking, DOE also proposes to define safety shower showerhead, so that it is clear what products are subject to the EPCA standard. It is also not necessary to explicitly include or exclude body sprays in the definition of showerhead. In the ASME standard, body spray is defined separately from showerhead, indicating that the two terms are different and that a body spray is not considered a showerhead. In this proposal, DOE similarly defines “body spray” separately from “showerhead,” to clarify that a body spray is not included within the definition of a showerhead. Thus, DOE concludes that it is practicable to define showerhead as it is defined in the voluntary consensus standard developed by ASME in ASME/ANSI A112.18-1-2018.

In this proposal, DOE's regulations would specifically define the term “body spray” separately from the definition of showerhead, defining “body spray” as a “shower device for spraying water onto a bather other than from the overhead position.” Thus, DOE's regulations would make clear that body sprays are not covered by DOE's test procedure or the energy conservation standard applicable to showerheads. Doing so would be consistent with DOE's proposed interpretation of the term “showerhead.”

This definition would be consistent with the current ASME standard, ASME A112.18.1-2018, which defines a body spray as a “shower device for spraying water onto a bather other than from the overhead position.” In DOE's May 2012 NOPR, DOE proposed to use this definition for the term “body spray,” and also proposed to include body sprays in the definition of showerhead. Industry commenters stated that body sprays were not accessories because they cannot be readily added or removed by the user. (78 FR 20832, 20834; Apr. 8, 2013). Some commenters expressed the view that showerheads should not be defined as “accessories” and that body sprays should be included in the definition of showerhead. Id. As a result of these comments, DOE proposed in a supplemental proposal and ultimately finalized a definition of showerhead that used the term “component” rather than “accessory”. While DOE did not define “body spray” in the final test procedure rule, the definition of “showerhead”—unlike the May 2012 NOPR—did not specifically include (or exclude) body sprays. This omission may have introduced uncertainty for regulated parties.

DOE believes that it is appropriate to clarify explicitly that body sprays are not showerheads. As illustrated in Figure II (where the product at the far right represents a body spray), products with multiple showerheads are more akin to body sprays because of the multiple nozzles that each product has, regardless of the overhead configuration. DOE has determined that its proposed definition, which considers each showerhead in a product with multiple showerheads as a showerhead for purposes of standards compliance, is more consistent with its previous (and current) treatment of body sprays, which are not included in its regulatory definition of showerhead.

DOE notes that the October 2013 final rule establishing the definition for showerhead did not define body spray, leaving it to the Department's discretion to determine whether a given product was required to comply with the standard. In this proposed rule, DOE requests comment on its proposal to include in its regulations the definition of body spray originally presented in the May 2012 NOPR and contained within the current ASME definition—“a shower device for spraying water onto a bather other than from the overhead position.” The ASME standard gives an example of a device mounted on a wall below the bather's head that sprays water in an approximately horizontal direction and can be fixed or allowed to swivel on a ball joint. (ASME A112.18.1-2018, Section 3.1). Under this proposal, DOE's regulations would specifically define body sprays separately from the definition of showerhead, so as to explicitly provide that body sprays are not covered by DOE's test procedure or the energy conservation standard applicable to showerheads.

In this rulemaking, DOE proposes to adopt the following ANSI standard as the definition of “safety shower showerhead”: “a device specifically designed and intended to deliver a flushing fluid in sufficient volume to cause that fluid to cascade over the entire body.” Defining this term is important, because the statute provides that “[t]he term “showerhead” means any showerhead (including a handheld showerhead), except a safety shower showerhead.” 42 U.S.C. 6291(31)(D).

In DOE's October 2013 final rule establishing the current definition of “showerhead”, DOE declined to define the term “safety shower showerhead,” which meant that the class of showerheads that EPCA excluded from standards was undefined and subject to DOE's discretion as to what was considered a safety shower showerhead. DOE noted in the October 2013 final rule that ANSI standard Z358.1, “Emergency Eyewash and Shower Equipment”, defines an emergency shower as “a device specifically designed and intended to deliver a flushing fluid in sufficient volume to cause that fluid to cascade over the entire body.” 78 FR 62970, 62974; Oct. 23, 2013. Commenters, including NSF and PMI, supported inclusion of the definition of safety shower showerhead consistent with the requirements of ANSI standard Z358.1. At the time, DOE declined to adopt this definition, stating that DOE could not identify a definition that would clearly distinguish these products from showerheads covered under EPCA and that adopting an unclear definition would cause additional confusion. Id. Upon further reflection, DOE is of the view that leaving the scope of products not subject to EPCA's energy conservation standards undefined, and potentially subjecting manufacturers of safety shower showerheads to DOE standards, causes more confusion than establishing a regulatory definition consistent with the existing ANSI standard. What is meant by a “safety shower showerhead” or emergency shower is understood in the regulated industry, and DOE believes that it is unlikely that manufacturers of showerheads intended for use by residential consumers would design a showerhead to meet the specifications of the ANSI standard to avoid compliance with DOE standards.

DOE seeks comment on its proposal to adopt the ANSI standard as the definition of “safety shower showerhead”, whether there is currently uncertainty regarding which products are “safety shower showerheads”, and whether that definition would provide clarity as to those showerheads that are not subject to the DOE standard.

DOE proposes amendments to the testing provisions at 10 CFR part 430, subpart B, appendix S to address the testing of a single showerhead in a product with multiple showerheads. A measurement would be required for only one showerhead when all showerheads in the product are identical. If the showerheads in such a product are not identical, only the showerhead with the maximum water flow would need to be tested to determine compliance with the 2.5 gpm standard. Additionally, DOE proposes to specify that where it is not possible to turn on only the showerhead being tested, testing would be performed with all showerheads flowing at the maximum rate. Measurement would be taken of only the showerhead under test.

DOE emphasizes that if an existing product manufactured pursuant to DOE's current definition of showerheads is compliant with the 2.5 gpm standard, that product would remain compliant under the definition of showerhead in this proposed rule, if finalized. Specifically, if a product with multiple showerheads currently available is compliant with the 2.5 gpm standard when considering all showerheads together, it must be the case that each individual showerhead is compliant separately with the standard. Because DOE's focus is standards compliance, should DOE finalize this proposal, manufacturers would not be required to retest and recertify that product, and could continue to report the same flow rate to DOE that they report currently for purposes of demonstrating compliance with the standard. DOE may consider whether updates to its certification regulations at part 429 are appropriate if it were to finalize the definitional change in this proposed rule.

According to data in DOE's certification database (CCMS database, as of March 2020, there are 7,221 basic models of showerheads. Of those, DOE estimates that only 3% are multi-head showerheads. For 97 percent of showerheads currently on the market, testing requirements would not change. For the very small percentage of remaining products that do have more than one showerhead, and any new products manufactured with more than one showerhead, the testing requirement would still be to test the flow rate pursuant to section 5.4 of the ASME standard, but instead of measuring the flow from all of the showerheads or outlets, the flow rate of only one of these would be measured. In other words, the same test would be performed, but the water from only one showerhead would be measured to determine compliance with the DOE water conservation standard.

The Administrator of the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) has determined that the proposed regulatory action is a significant regulatory action under section (3)(f) of Executive Order 12866. Accordingly, this action was reviewed by OIRA in the Office of Management and Budget (OMB). The definitional change in this rule is not expected to have a material impact on costs. Similarly, the proposed rule is expected to result in minimal increase in benefits, primarily through clarifying the showerhead definition.

On January 30, 2017, the President issued Executive Order (E.O.) 13771, “Reducing Regulation and Controlling Regulatory Costs.” E.O. 13771 stated the policy of the executive branch is to be prudent and financially responsible in the expenditure of funds, from both public and private sources. E.O. 13771 stated it is essential to manage the costs associated with the governmental imposition of private expenditures required to comply with Federal regulations.

Additionally, on February 24, 2017, the President issued E.O. 13777, “Enforcing the Regulatory Reform Agenda.” E.O. 13777 required the head of each agency designate an agency official as its Regulatory Reform Officer (RRO). Each RRO oversees the implementation of regulatory reform initiatives and policies to ensure that agencies effectively carry out regulatory reforms, consistent with applicable law. Further, E.O. 13777 requires the establishment of a regulatory task force at each agency. The regulatory task force is required to make recommendations to the agency head regarding the repeal, replacement, or modification of existing regulations, consistent with applicable law. At a minimum, each regulatory reform task force must attempt to identify regulations that:

(i) Eliminate jobs, or inhibit job creation;

(ii) Are outdated, unnecessary, or ineffective;

(iii) Impose costs that exceed benefits;

(iv) Create a serious inconsistency or otherwise interfere with regulatory reform initiatives and policies;

(v) Are inconsistent with the requirements of Information Quality Act, or the guidance issued pursuant to that Act, in particular those regulations that rely in whole or in part on data, information, or methods that are not publicly available or that are insufficiently transparent to meet the standard for reproducibility; or

(vi) Derive from or implement Executive Orders or other Presidential directives that have been subsequently rescinded or substantially modified.

For the reasons stated in the preamble, DOE has preliminarily determined that this action is a deregulatory action for purposes of E.O. 13771.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) requires preparation of an initial regulatory flexibility analysis (IFRA) for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. As required by Executive Order 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” 67 FR 53461 (Aug. 16, 2002), DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the DOE rulemaking process. 68 FR 7990. DOE has made its procedures and policies available on the Office of the General Counsel's website: http://energy.gov/gc/office-general-counsel.

DOE reviewed this proposed rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. The proposed rule would amend the definition of showerhead such that each showerhead in a product with multiple showerheads would constitute a single showerhead for purposes of compliance with the 2.5 gpm standard. The proposal would also specifically define and exclude body sprays and safety shower showerheads from the regulatory definition of showerhead. As explained in section II of this proposed rule, DOE does not expect a change in the test burden as a result of this proposed rule, if adopted. Specifically, the same test would be performed, but the water from only one showerhead would be measured to determine compliance with the DOE water conservation standard. The updates to the testing procedures maintain the current testing requirement that only one showerhead per product would need to be tested, and current products with multiple showerheads that meet the energy conservation standard would not need to be retested. Based on the foregoing, DOE certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities.

Manufacturers of showerheads must certify to DOE that their products comply with any applicable energy conservation standards. To certify compliance, manufacturers must first obtain test data for their products according to the DOE test procedures, including any amendments adopted for those test procedures. DOE has established regulations for the certification and recordkeeping requirements for all covered consumer products and commercial equipment, including showerheads. (See generally 10 CFR part 429.) The collection-of-information requirement for the certification and recordkeeping is subject to review and approval by OMB under the Paperwork Reduction Act (“PRA”). This requirement has been approved by OMB under OMB control number 1910-1400. Public reporting burden for the certification is estimated to average 30 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.

DOE is analyzing this proposed regulation in accordance with the National Environmental Policy Act of 1969 (NEPA) and DOE's NEPA implementing regulations (10 CFR part 1021). DOE's regulations include a categorical exclusion for rulemakings interpreting or amending an existing rule or regulation that does not change the environmental effect of the rule or regulation being amended. 10 CFR part 1021, subpart D, Appendix A5. DOE anticipates that this rulemaking qualifies for categorical exclusion A5 because it is an interpretive rulemaking that does not change the environmental effect of the rule and otherwise meets the requirements for application of a categorical exclusion. See 10 CFR 1021.410. DOE will complete its NEPA review before issuing the final rule.

Executive Order 13132, “Federalism,” 64 FR 43255 (Aug. 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. The Executive Order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735. DOE has examined this proposed rule and has determined that it would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the products that are the subject of this proposed rule. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297(d)) No further action is required by Executive Order 13132.

Regarding the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (Feb. 7, 1996), imposes on Federal 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 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 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, the proposed rule meets the relevant standards of Executive Order 12988.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). For a proposed regulatory action likely to result in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a proposed “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect small governments. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820; also available at http://energy.gov/gc/office-general-counsel. DOE examined this proposed rule according to UMRA and its statement of policy and determined that the rule contains neither an intergovernmental mandate, nor a mandate that may result in the expenditure of $100 million or more in any year, so these requirements do not apply.

Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This proposed rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.

DOE has determined, under Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights” 53 FR 8859 (March 18, 1988), that this regulation would not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.

Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has reviewed this proposed rule 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 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.

The proposed regulatory action to reinterpret the definition of “showerhead” and revise the test procedure for measuring the energy efficiency of showerheads is a significant regulatory action under Executive Order 12866. Moreover, it would not have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as a significant energy action by the Administrator of OIRA. Therefore, it is not a significant energy action, and, accordingly, DOE has not prepared a Statement of Energy Effects.

Under section 301 of the Department of Energy Organization Act (Pub. L. 95-91; 42 U.S.C. 7101), DOE must comply with section 32 of the Federal Energy Administration Act of 1974, as amended by the Federal Energy Administration Authorization Act of 1977. (15 U.S.C. 788; “FEAA”) Section 32 essentially provides in relevant part that, where a proposed rule authorizes or requires use of commercial standards, the notice of proposed rulemaking must inform the public of the use and background of such standards. In addition, section 32(c) requires DOE to consult with the Attorney General and the Chairman of the FTC concerning the impact of the commercial or industry standards on competition.

The proposed modifications to the test procedure for showerheads in this proposed rule incorporate definitions and testing methods contained in certain sections of the following commercial standards: ASME A112.18.1-2018, “Plumbing supply fittings.” DOE has evaluated this standard and is unable to conclude whether it fully complies with the requirements of section 32(b) of the FEAA ( i.e., whether it was developed in a manner that fully provides for public participation, comment, and review.) DOE will consult with both the Attorney General and the Chairman of the FTC concerning the impact of these test procedures on competition, prior to prescribing a final rule.

In this NOPR, DOE proposes to incorporate by reference the test standards published by ASME, ASME A112.18.1-2012, Plumbing supply fittings (approved December 2012), and ASME A112.18.1-2018, Plumbing supply fittings (approved July 2018).

The proposed amendments in this proposed rulemaking include updating the reference to ASME A112.18.1-2012 to incorporate by reference the standard in its entirety. Currently, only section 5.4 of ASME A112.18.1-2012 is incorporated by reference at 10 CFR 430.3. ASME A112.18.1-2012 is an industry standard that contains performance guidelines and test procedures, and is intended to cover plumbing supply fittings and accessories between the supply stop and terminal fitting, including showerheads. This proposed rule would continue to reference Section 5.4, “Flow rate” of ASME A112.18.1-2012 in the test procedure for faucets.

The proposed amendments in this proposed rule include updating references to the definition of showerhead in ASME A112.18.1-2018. ASME A112.18.1-2018 is a more current version of A112.18.1-2012 and remains an industry standard that contains performance guidelines and test procedures, and is intended to cover plumbing supply fittings and accessories between the supply stop and terminal fitting, including showerheads. Specifically, the test procedures for showerheads as defined in this proposed rule would reference Section 5.4, “Flow rate” of ASME A112.18.1-2018.

Copies of both ASME A112.18.1-2012 and ASME A112.18.1-2018 may be purchased from the American Society of Mechanical Engineers, 1828 L St. NW, Suite 510, Washington, DC 20036-5104; (800) 843-2763, or by going to https://www.asme.org/codes-standards/find-codes-standards/a112-18-1-csa-b125-1-plumbing-supply-fittings and selecting the appropriate Edition (2012 or 2018).

DOE invites comment on all aspects of this proposal. DOE will accept comments, data, and information regarding this proposed rule before or after the public meeting, but no later than the date provided in the DATES section at the beginning of this proposed rule. Interested parties may submit comments using any of the methods described in the ADDRESSES section at the beginning of this proposed rule.

Submitting comments via http://www.regulations.gov. The http://www.regulations.gov web page will require you to provide your name and contact information. Your contact information will be viewable to DOE Building Technologies staff only. 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 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. 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 http://www.regulations.gov information for which disclosure is restricted by statute, such as trade secrets and commercial or financial information (hereafter referred to as Confidential Business Information (CBI)). Comments submitted through http://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.

DOE processes submissions made through http://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 http://www.regulations.gov provides after you have successfully uploaded your comment.

Submitting comments via email, hand delivery, or mail. Comments and documents submitted via email, hand delivery, or mail also will be posted http://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 on 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 mail or hand delivery, please provide all items on a CD, if feasible. It is not necessary to submit printed copies. No 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 not secured, written in English and 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.

Campaign form letters. Please submit campaign form letters by the originating organization in batches of between 50 to 500 form letters per PDF or as one form letter with a list of supporters' names compiled into one or more PDFs. This reduces comment processing and posting time.

Confidential Business Information. According 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, postal mail, or hand delivery 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 with the information believed to be confidential deleted. Submit these documents via email to Showerheads2020TP0002@ee.doe.gov or on a CD, if feasible. DOE will make its own determination about the confidential status of the information and treat it according to its determination.

It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).

The Secretary of Energy has approved publication of this proposed rule.

This document of the Department of Energy was signed on July 16, 2020, by Daniel R Simmons, Assistant Secretary for Energy Efficiency, Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. 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 is proposing to amend part 430 of Chapter II of Title 10, Code of Federal Regulations as set forth below:

The revision and addition read as follows:

The addition and revision read as follows:

The Energy Policy and Conservation Act, as amended (“EPCA”), 1 authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. (42 U.S.C. 6291-6317) Title III, Part B of EPCA established the Energy Conservation Program for Consumer Products Other Than Automobiles. These products include consumer (residential) clothes washers and clothes dryers, the subject of this document. (42 U.S.C. 6292(a)(7) and (8)) EPCA prescribed energy conservation standards for these products, and directed DOE to conduct a series of rulemakings to determine whether to amend these standards. (42 U.S.C. 6295(g)(2), (3), and (4)(A) and (B))

DOE completed the additional rulemakings for residential clothes washers with the publication of a direct final rule on May 31, 2012 (“May 2012 final rule”). 77 FR 32308. DOE completed the additional rulemakings for consumer clothes dryers by publishing a direct final rule on April 21, 2011, which amended the energy conservation standards for consumer clothes dryers. 76 FR 22454; 76 FR 52852 (Aug. 24, 2011).

EPCA directs that when prescribing an energy conservation standard for a type (or class) of a covered product, DOE must specify—

[A] Level of energy use or efficiency higher or lower than that which applies (or would apply) for such type (or class) for any group of covered products which have the same function or intended use, if DOE determines that covered products within such a group—

(A) Consume a different kind of energy from that consumed by other covered products within such type (or class); or

(B) Have a capacity or other such performance-related feature which other products within such type (or class) do not have and such feature justifies a higher or lower standard from that which applies (or will apply) to other products within such type.

In making a determination concerning whether a performance-related feature justifies the establishment of a higher or lower standard, DOE must consider such factors as the utility to the consumer of such a feature, and such other factors as DOE deems appropriate. (42 U.S.C. 6295(q)(1))

The current energy conservation standards establish four product classes for residential clothes washers by distinguishing between products on the basis of both clothing container capacity and axis of loading. 10 CFR 430.32(g)(4). A standard clothes washer has a clothing container capacity greater than or equal to 1.6 cubic feet (ft 3 ), while a compact clothes washer has a clothing container capacity less than 1.6 ft 3 . Axis of loading is differentiated by top-loading or front-loading. Id.

For consumer clothes dryers, the current energy conservation standards define six product classes, differentiated by the following characteristics: fuel source ( electric or gas ), venting configuration ( vented or ventless ), drum capacity ( standard (greater than or equal to 4.4 ft 3 ) or compact (less than 4.4 ft 3 )), integration with a clothes washer ( combination washer-dryer ), and for electric compact clothes dryers, voltage ( 120 V or 240 V ). 10 CFR 430.32(h)(3).

On March 21, 2018, the Competitive Enterprise Institute (“CEI”) petitioned DOE to initiate a rulemaking to define a new product class under 42 U.S.C. 6295(q) for residential dishwashers. 2 The new product class would cover dishwashers with a cycle time for a normal cycle of less than one hour from washing through drying. CEI stated that dishwasher cycle times have become dramatically longer under existing DOE energy conservation standards, and that consumer satisfaction/utility has dropped as a result of these longer cycle times. CEI also provided data regarding the increase in dishwasher cycle time, including data that correlated increased cycle time with DOE's adoption of amended efficiency standards for dishwashers.

Based upon its evaluation of the CEI petition and consideration of the public comments received in response to the notice of petition published in the Federal Register on April 24, 2018 (83 FR 17768), DOE granted the petition for rulemaking and proposed a dishwasher product class with a cycle time for the normal cycle of less than one hour. 84 FR 33869 (July 16, 2019). In that proposed rule DOE reiterated its prior conclusion with respect to commercial clothes washers that “the longer average cycle time of front-loading machines warrants consideration of separate [product] classes.” 79 FR 74492, 74498 (Sept. 15, 2014). Further, DOE stated its position that, similar to commercial clothes washers, cycle time for dishwashers is a performance-related feature for purposes of 6295(q) that justifies a higher or lower standard than that applicable to other dishwasher product classes.

Consumer use of residential clothes washers and consumer clothes dryers is similar to that of residential dishwashers ( i.e., the products provide consumer utility over discrete cycles with programmed cycle times, and consumers run these cycles multiple times per week on average). In Section II of this NOPR, DOE presents cycle time data that DOE has gathered in support of its proposal to establish separate product classes for residential clothes washers and consumer clothes dryers to preserve a performance-related feature of both residential clothes washers and consumer clothes dryers ( i.e., the consumer utility of a short cycle time).

Consistent with the analysis presented in the proposed rulemaking to establish a new dishwasher product class (84 FR 33869, 33871-33873; July 16, 2019), DOE has concluded it has legal authority pursuant to 42 U.S.C. 6295(q) to establish separate product classes for residential clothes washers and consumer clothes dryers.

As explained in the dishwasher NOPR, DOE has taken the view in numerous prior rulemakings (cited and discussed in this paragraph and the next few paragraphs) that consumer utility is an aspect of the product that is accessible to the layperson and based on user operation, rather than performing a theoretical function. This interpretation has been implemented in DOE's previous determinations of utility through the value the particular feature brings to the consumer, rather than through analyzing more complicated design features or costs that anyone, including the consumer, manufacturer, installer, or utility companies may bear. DOE has determined that this approach is consistent with EPCA's requirement for a separate and extensive analysis of economic justification for the adoption of any new or amended energy conservation standard. See, e.g., discussion in DOE's proposed rule and supplemental proposed rule to establish amended energy conservation standards for furnaces at 80 FR 13120, 13137 (Mar. 12, 2015); 81 FR 65720, 65752-65755 (Sept. 23, 2016). Under this approach, DOE determined that the window in an oven door was a “feature” justifying a different standard. 3 Similarly, DOE also determined that consumers may value other features such as the ability to self-clean, 4 size, 5 and configuration. 6 In contrast, DOE determined that water heaters using electric resistance technology did not merit a product class separate from water heaters using heat pump technology. 7 In both heat-pump and electric storage water heaters, the same utility to the consumer ( i.e., hot water) was provided by units using different technology.

In a rulemaking to amend standards applicable to commercial clothes washers, DOE determined that the “axis of loading” constituted a feature that justified separate product classes for top-loading and front-loading clothes washers. DOE also determined that “the longer average cycle time of front-loading machines warrants consideration of separate [product] classes.” See final rule to amend standards at 79 FR 74492, 74498 (Sept. 15, 2014). DOE stated that a split in preference between top-loaders and front-loaders would not indicate consumer indifference to the axis of loading, but rather that a certain percentage of the market expresses a preference for ( i.e., derives utility from) the top-loading configuration. DOE further noted that separation of clothes washer product classes by location of access is similar in nature to the product classes for residential refrigerator-freezers, which include separate product classes based on the access of location of the freezer compartment ( e.g., top-mounted, side-mounted, and bottom-mounted). The location of the freezer compartment on these products provides no additional performance-related utility other than consumer preference. In other words, the location of access itself provides distinct consumer utility. Id. at 79 FR 74499. DOE also reasoned that top-loading residential clothes washers are available with the same efficiency levels, control panel features, and price points as front-loading residential clothes washers, and that given these equivalencies, purchase of top-loaders indicates a preference among certain consumers for the top-loading configuration, i.e., the top-loading configuration provides utility to those customers preferring one configuration over another, with all other product attributes being equal. Id.

DOE acknowledged that its determination of what constitutes a performance-related feature justifying a different standard could change depending on the technology and the consumer, and that as a result, certain products may entirely disappear from the market due to shifting consumer demand. DOE determines such value on a case-by-case basis through its own research as well as public comments received, the same approach that DOE employs in all other parts of its energy conservation standards rulemaking. See proposed rule to amend standards for residential furnaces at 80 FR 13120, 13138 (Mar. 12, 2015).

DOE applied this same approach to cycle time for dishwashers in the product class NOPR. 84 FR 33869, 33872 (July 16, 2019). Consumer use of residential clothes washers and consumer clothes dryers is similar to that of residential dishwashers, in that the products provide consumer utility over discrete cycles with programmed cycle times, and consumers run these cycles multiple times per week on average. As such, the impact of cycle time on consumer utility identified by CEI in its petition regarding dishwashers is also relevant to residential clothes washers and consumer clothes dryers. More importantly, DOE previously determined in the context of residential clothes washers that cycle time warrants consideration of separate classes. See final standards rule at 77 FR 32308, 32319 (May 31, 2012).

DOE understands that a consumer's perception of the utility provided by a clothes washer encompasses multiple aspects of performance such as: stain removal ( i.e., “cleaning performance”), solid particle removal, rinsing effectiveness, fabric gentleness, cycle time, noise, vibration, and others. A clothes washer's overall performance is a balance among all of these interdependent attributes, and each manufacturer chooses how to balance these aspects of performance. Furthermore, achieving better performance in one attribute may require a tradeoff with one or more other attributes. Similar tradeoffs may exist among the performance attributes of clothes dryers as well, such as dryness, fabric gentleness, wrinkle removal, and cycle time.

Recognizing the interdependence of these multiple aspects of performance in clothes washers and clothes dryers, manufacturers are currently offering models implementing a range of clothes washer and clothes dryer performance characteristics. DOE presumes that the shortest possible cycle times currently available on the market represent the models for which manufacturers have prioritized cycle time while maintaining adequate performance across the other performance aspects. These models must also meet the applicable energy and water conservation standard. Based on this presumption, the current energy conservation standards may be precluding manufacturers from bringing models to the market with substantially shorter cycle times. Offering products with shorter cycle times (which would provide greater consumer utility for that aspect of performance) would require more per-cycle energy and/or water use than would be permitted under the current standards in order to maintain the same level of performance in other areas ( e.g., cleaning, noise, etc. ).

Accordingly, DOE proposes to establish separate product classes for residential clothes washers and consumer clothes dryers based on the cycle time required for a normal cycle to wash and dry, respectively, clothing loads. DOE concludes that cycle time for residential clothes washers and clothes dryers is a performance-related feature for purposes of 42 U.S.C. 6295(q) that justifies a higher or lower standard than that applicable to other product classes of residential clothes washers and clothes dryers.

Based on the data presented in section II.B, DOE proposes to establish separate product classes for top-loading residential clothes washers with an average cycle time of less than 30 minutes when conducting the DOE clothes washer test procedure at 10 CFR part 430, subpart B, appendix J2 (“Appendix J2”). DOE also proposes to establish separate product classes for front-loading residential clothes washers with an average cycle time of less than 45 minutes when conducting the same DOE test procedure. For consumer clothes dryers, DOE proposes separate product classes for clothes dryers with a cycle time of less than 30 minutes when conducting the DOE clothes dryer test procedure at 10 CFR part 430, subpart B, appendix D2 (“Appendix D2”). DOE seeks comment on other appropriate time frames that it could consider in developing the final rule.

DOE makes clear that if it were to finalize this proposal and thereby establish separate product classes for residential clothes washers and consumer clothes dryers, no energy efficiency standards yet apply to such products. DOE would need to undertake rulemaking pursuant to the procedures established in EPCA and the methodology required by its procedures codified at appendix A to subpart C of 10 CFR part 430. Accordingly, DOE proposes to establish product classes based on cycle time as follows:

(1) Top-loading, standard-size clothes washers with an average cycle time of less than 30 minutes and front-loading, standard-size clothes washers with an average cycle time of less than 45 minutes; and

(2) Vented, electric standard-size clothes dryers and vented gas clothes dryers with a test cycle time of less than 30 minutes.

Such products would not be subject to the applicable DOE test procedure or energy conservation standards, unless and until DOE were to complete appropriate rulemaking to establish applicable test procedures and energy conservation standards.

DOE gathered data on cycle times for a range of residential clothes washers and consumer clothes dryers, with test units representing the most popular product classes for each product. This document provides a high-level summary of this data. DOE is also including a separate technical appendix in the docket of this rulemaking that includes a more detailed presentation of the data. 8

For residential clothes washers, the top-loading standard-size and front-loading standard-size product classes combined represent over 95 percent of models currently available on the market. DOE does not have data regarding the current distribution of shipments by product class; however, in DOE's experience, model-based distributions provide a close approximation of shipments-based distributions for residential laundry products. DOE's Compliance Certification Database  9 contains 501 unique basic models of residential clothes washers. The number of unique basic models in each product class (including the corresponding percentage of the total 501 models) are as follows:

DOE evaluated the cycle times of a representative sample of units within the top-loading standard-size and front-loading standard-size product classes. For the top-loading standard-size product class, DOE tested 23 units representing 10 brands across 7 manufacturers. For the front-loading standard-size product class, DOE tested 20 units representing 14 brands across 12 manufacturers. The technical appendix provides additional details of the technical attributes of each of the units evaluated.

To evaluate the cycle time of each unit, DOE analyzed test data from performing the Appendix J2 test procedure once in its entirety for each unit. Appendix J2 is the DOE test procedure required to demonstrate compliance with the current energy conservation standards. The Appendix J2 procedure requires testing a complete set of wash/rinse temperature selections and load sizes; the specific temperatures and load sizes required for testing are defined in the test procedure and are based on the user-selectable options and features available on the model. 10 In general, testing is performed using the “normal” cycle ( i.e., wash program), which is defined as the wash program recommended for normal, regular, or typical use for washing up to a full load of normally-soiled cotton clothing. For clothes washers with manual water fill control systems (in which the user physically selects the water fill level), Appendix J2 requires testing each available temperature selection using two load sizes: minimum and maximum. For clothes washers with automatic water fill control systems ( i.e., “load-sensing”), Appendix J2 requires testing each available temperature selection using three load sizes: minimum, average, and maximum. 11 Among the top-loading standard-size units that DOE evaluated, 5 models have a manual water fill control system, 14 models have an automatic water fill control system, and 4 models have both manual and automatic water fill systems. All 20 front-loading standard-size units that DOE evaluated have an automatic water fill control system. DOE is not aware of any front-loading models on the market with a manual water fill control system. The DOE test procedure specifies usage factors for the various tested temperature selections and load sizes, to combine the results of all the required wash cycles when calculating the integrated modified energy factor (“IMEF”) rating and integrated water factor (“IWF”) rating. 12

Clothes washers offer a variety of wash temperature selections ( e.g., Cold, Cool, Warm, Hot, Extra Hot/Sanitize, etc. ). Typically, clothes washer models offer between three and five wash temperatures that are available for the consumer to choose when selecting the “normal” cycle. As described, each temperature selection required for testing is tested using the two or three different load sizes, depending on the type of water fill control, as part of the Appendix J2 test procedure.

As an example, consider a representative load-sensing clothes washer with four available wash temperatures in the normal cycle ( e.g., Cold, Cool, Warm, Hot). On such a model, conducting Appendix J2 once in its entirety would require performing 12 individual test cycles ( i.e., running test cycles on all four temperature settings with each of the three load sizes), the results of which would be combined in a weighted average to produce the IMEF and IWF values.

For each unit in its test sample, DOE evaluated cycle time using the complete set of wash cycle configurations (combinations of wash/rinse temperature settings and load sizes) required by the DOE test procedure. The technical appendix provides additional details of the wash cycle configurations for each unit. The number of wash cycle configurations ranged from 9 (for a manual water fill unit with three temperature selections, each tested with two load sizes) to 21 (for a load-sensing unit with seven temperature selections, each tested with three load sizes). Appendix J2 does not include provisions for determining a single cycle time metric for residential clothes washers. To evaluate overall cycle times for model-to-model comparisons, DOE considered three distinct methods for representing the cycle time of each individual unit:

1. The arithmetic average of the individual cycle times for each wash cycle configuration conducted as part of the Appendix J2 test procedure.

2. The weighted average of the individual cycle times for each wash cycle configuration conducted as part of the Appendix J2 test procedure, using the temperature use factors and load usage factors as defined by Appendix J2 for the weighting.

3. The median cycle time of the complete set of wash cycle configurations conducted as part of the Appendix J2 test procedure.

The data presented below show the results using each of these three methods. The technical appendix includes tables that provide, for each unit evaluated, the individual cycle times for each wash cycle configuration conducted as part of the Appendix J2 test procedure that were used as the basis of this analysis. For the purpose of this evaluation, DOE considered individual cycle time as the time required to complete the entire active washing mode (washing, soaking, tumbling, agitating, rinsing, and/or removing water from the load), not including any continuous status display, intermittent tumbling, or air circulation following operation in active washing mode. DOE recognizes that the cycle times associated with specific wash/rinse temperature combinations, load sizes, or other cycle configurations could also provide useful comparisons across models.

DOE testing indicates that for a given model, the cycle time of any individual wash cycle may be dependent upon the options that are selected for the wash cycle and the size of the load being washed. For example, an Extra Hot/Sanitize temperature selection typically has a longer cycle time than other lower-temperature selections because of the need to heat the water internally to high temperatures, and for the clothes to remain heated for a sufficient amount of time to achieve sanitization. As another example, for load-sensing clothes washers, cleaning a large load size will typically result in a longer cycle time than a small load size. DOE testing suggests, however, that the difference in cycle times as a result of these different selections for a given model (other than for an Extra Hot/Sanitize temperature selection) is typically less than the range in cycle times among different models on the market.

Table II.1 and Table II.2 of this document provide the cycle time (determined using each of the three methods described above) for the top-loading standard-size and front-loading standard-size residential clothes washer test units, respectively. The data include each unit's IMEF and IWF rating, as measured under Appendix J2. Figure II.1 and Figure II.2 present the same data graphically, showing cycle time with respect to each unit's IMEF rating for each of the three methods described above. For the IMEF rating, a higher value indicates more efficient energy performance. For the IWF rating, a lower value indicates more efficient water performance. (See the technical appendix for additional details of the technical attributes of each of the units evaluated.)

I. Comments

FHFA invites comments on all aspects of the proposed rule and will take all comments into consideration before issuing a final rule. Copies of all comments on the proposed rule will be posted without change, including any personal information you provide such as your name, address, email address, and telephone number, on the FHFA website at https://www.fhfa.gov. In addition, copies of all comments received will be available for examination by the public through the electronic rulemaking docket for this proposed rule also located on the FHFA website.

Uncertainty over public health and the economic impacts of the COVID-19 pandemic has caused significant disruption in both the single-family and multifamily housing markets since March. For reasons explained in more detail later in the proposed rule, due to the unexpectedly severe nature of the COVID-19 pandemic and associated economic uncertainty, FHFA is proposing benchmark levels for the single-family and multifamily goals for calendar year 2021 only. The proposed benchmark levels are set forth below and would be the same as those for 2018-2020. FHFA will subsequently conduct a new round of notice and comment rulemaking to establish benchmark levels for 2022 and beyond.

The Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (Safety and Soundness Act) requires FHFA to establish several annual housing goals for both single-family and multifamily mortgages purchased by Fannie Mae and Freddie Mac. 1 The annual housing goals are one measure of the extent to which the Enterprises are meeting their public purposes, which include “an affirmative obligation to facilitate the financing of affordable housing for low- and moderate-income families in a manner consistent with their overall public purposes, while maintaining a strong financial condition and a reasonable economic return.”  2

FHFA has established annual housing goals for Enterprise purchases of single-family and multifamily goals consistent with the requirements of the Safety and Soundness Act. The structure of the housing goals and the rules for determining how mortgage purchases are counted or not counted are defined in the housing goals regulation. 3 The most recent rule established benchmark levels for the housing goals for 2018-2020. 4 This proposed rule would establish benchmark levels for 2021, but it would not make any other changes to the housing goals regulation.

Single-family goals. The single-family goals defined under the Safety and Soundness Act include separate categories for home purchase mortgages for low-income families, very low-income families, and families that reside in low-income areas. 5 FHFA has also established a subgoal within the low-income areas goal that is limited to families in low-income census tracts and moderate-income families in minority census tracts. Performance on the single-family home purchase goals is measured as the percentage of the total home purchase mortgages purchased by an Enterprise each year that qualify for each goal or subgoal. There is also a separate goal for refinancing mortgages for low-income families, and performance on the refinancing goal is determined in a similar way.

Under the Safety and Soundness Act, the single-family housing goals are limited to mortgages on owner-occupied housing with one to four units total. The single-family goals cover conventional, conforming mortgages, defined as mortgages that are not insured or guaranteed by the Federal Housing Administration or another government agency and with principal balances that do not exceed the conforming loan limits for Enterprise mortgages.

Two-part evaluation approach. The performance of the Enterprises on the housing goals is evaluated using a two-part approach, comparing the goal-qualifying share of the Enterprise's mortgage purchases to two separate measures: A benchmark level; and a market level. In order to meet a single-family housing goal, the percentage of mortgage purchases by an Enterprise that meet each goal must equal or exceed either the benchmark level or the market level for that year. The benchmark level is set prospectively by rulemaking based on various factors set forth in the Safety and Soundness Act. 6 The market level is determined retrospectively for each year, based on the actual goal-qualifying share of the overall market as measured by the Home Mortgage Disclosure Act (HMDA) data for that year. The overall market that FHFA uses for setting both the prospective benchmark level and the retrospective market level consists of all single-family owner-occupied conventional conforming mortgages that would be eligible for purchase by either Enterprise. It includes loans purchased by the Enterprises as well as comparable loans held in a lender's portfolio. It also includes any loans that are part of a private label security (PLS), though very few such securities have been issued for conventional conforming mortgages since 2008.

While both the benchmark level and the retrospective market level are designed to measure the current year's mortgage originations, the performance of the Enterprises on the housing goals includes all Enterprise purchases in that year, regardless of the year in which the loan was originated. This includes housing goals credit when the Enterprises acquire qualified seasoned loans. (Seasoned loans are loans that were originated in prior years and acquired by the Enterprise in the current year.)

Multifamily goals. The multifamily goals defined under the Safety and Soundness Act include categories for mortgages on multifamily properties (properties with five or more units) with rental units affordable to low-income families and mortgages on multifamily properties with rental units affordable to very low-income families. FHFA has also established a small multifamily low-income subgoal for properties with 5-50 units. The multifamily housing goals include all Enterprise multifamily mortgage purchases, regardless of the purpose of the loan. The multifamily goals evaluate the performance of the Enterprises based on numeric targets, not percentages, for the number of affordable units in properties backed by mortgages purchased by an Enterprise. FHFA has not established a retrospective market level measure for the multifamily goals, due in part to a lack of comprehensive data about the multifamily market. As a result, FHFA currently measures Enterprise multifamily goals performance against the benchmark levels only.

The Safety and Soundness Act requires that affordability for rental units under the multifamily goals be determined based on rents that “[do] not exceed 30 percent of the maximum income level of such income category, with appropriate adjustments for unit size as measured by the number of bedrooms.”  7 The housing goals regulation considers the net rent paid by the renter and, therefore, nets out any subsidy payments that the renter may receive, including housing assistance payments.

If, after publication of a final rule establishing the housing goals for 2021, FHFA determines that any of the single-family or multifamily housing goals should be adjusted in light of market conditions, to ensure the safety and soundness of the Enterprises, or for any other reason, FHFA will take any steps that are necessary and appropriate to adjust that goal such as reducing the benchmark levels through the processes in the existing regulation. FHFA recognizes that 2021 is likely to be a year of disrupted economic activity. While FHFA is taking this uncertainty into consideration in proposing the benchmark levels for 2021, FHFA may take other actions consistent with the Safety and Soundness Act and the Enterprise housing goals regulation based on new information or developments that occur after publication of a final rule.

For example, under the Safety and Soundness Act and the Enterprise housing goals regulation, FHFA may reduce the benchmark levels in response to an Enterprise petition for reduction for any of the single-family or multifamily housing goals in a particular year based on a determination by FHFA that: (1) Market and economic conditions or the financial condition of the Enterprise require a reduction; or (2) efforts to meet the goal or subgoal would result in the constraint of liquidity, over-investment in certain market segments, or other consequences contrary to the intent of the Safety and Soundness Act or the purposes of the Enterprises' charter acts. 8

The Safety and Soundness Act and the Enterprise housing goals regulation also take into account the possibility that achievement of a particular housing goal may or may not have been feasible for an Enterprise. If FHFA determines that a housing goal was not feasible for an Enterprise to achieve, then the statute and regulation provide for no further enforcement of that housing goal for that year. 9

If FHFA determines that an Enterprise failed to meet a housing goal and that achievement of the housing goal was feasible, then the statute and regulation provide FHFA with discretion to require the Enterprise to submit a housing plan describing the specific actions the Enterprise will take to improve its performance. FHFA is requesting comments on factors that FHFA should consider in determining whether to require an Enterprise to submit a housing plan. For example, are there other Enterprise activities such as forbearance actions, loss mitigation efforts, loan modifications, and other market support activities that FHFA should take into account while reviewing Enterprise goals performance for 2021 on both the single-family and multifamily side? While FHFA is not proposing any change to the regulation regarding housing plans, FHFA welcomes input from the public on factors that FHFA should consider in making discretionary determinations on whether to require a housing plan.

On September 6, 2008, FHFA placed each Enterprise into conservatorship. Although the Enterprises remain in conservatorship at this time, they continue to have the mission of supporting a stable and liquid national market for residential mortgage financing. FHFA has continued to establish annual housing goals for the Enterprises and to assess their performance under the housing goals each year during conservatorship.

Due to the unexpectedly severe nature of the COVID-19 pandemic and associated economic uncertainty, FHFA is proposing benchmark levels for the single-family and multifamily goals for calendar year 2021 only. FHFA will subsequently conduct a new round of notice and comment rulemaking to establish benchmark levels for 2022 and beyond. The proposed benchmark levels are set forth below and would be the same as those for 2018-2020.

This proposed rule would establish the benchmark levels for the single-family housing goals and subgoal for 2021 as follows:

The single-family housing goals also include a Low-Income Areas Home Purchase Goal that the regulation defines as the benchmark level for the Low-Income Areas Home Purchase Subgoal plus an additional “disaster areas” increment that FHFA determines each year based on Federal Emergency Management Agency declarations of disasters that are applicable to that year. The proposed rule would not make any change to the criteria or process for setting the additional “disaster areas” increment for 2021.

The proposed rule would also establish the benchmark levels for the multifamily goal and subgoals for 2021 as follows:

The Safety and Soundness Act requires FHFA to consider the following seven factors in setting the single-family housing goals:

1. National housing needs;

2. Economic, housing, and demographic conditions, including expected market developments;

3. The performance and effort of the Enterprises toward achieving the housing goals in previous years;

4. The ability of the Enterprises to lead the industry in making mortgage credit available;

5. Such other reliable mortgage data as may be available;

6. The size of the purchase money conventional mortgage market, or refinance conventional mortgage market, as applicable, serving each of the types of families described, relative to the size of the overall purchase money mortgage market or the overall refinance mortgage market, respectively; and

7. The need to maintain the sound financial condition of the Enterprises. 10 FHFA has considered each of these seven statutory factors in setting the proposed benchmark levels for each of the single-family housing goals and subgoal.

In setting the benchmark levels for the single-family housing goals, FHFA typically relies on statistical market models to evaluate these statutory factors and generate a point forecast for each goal as well as a confidence interval for the point forecast. FHFA then considers other statutory factors, as well as other relevant policy issues, to select a specific point forecast within the confidence interval as the proposed benchmark level. However, due to the unexpectedly severe nature of the COVID-19 pandemic and the current associated uncertainty going forward, FHFA has determined that the data used to create the statistical market models is not sufficient to reflect economic conditions for 2021. As a result, FHFA is proposing to keep the benchmark levels for 2021 at the same level as for 2020.

In proposing the benchmark levels for the single-family housing goals for 2021, FHFA considered the statutory factors, including the current economic conditions, national housing needs, recent market developments, and the past performance of the Enterprises on the housing goals.

Uncertainty over public health and the economic impacts of the COVID-19 pandemic have dealt a severe blow to the U.S. economy. The sudden drop in economic activity has created widespread disruptions and resulted in an unprecedented level of job losses. The unemployment rate jumped from 3.5 percent in February to 14.7 percent in April. 11 Inflation-adjusted consumer expenditures, which account for about two-thirds of gross domestic product (GDP), declined 7.3 percent in March. On June 8, the Business Cycle Dating Committee of the National Bureau of Economic Research officially declared that the U.S. economy fell into a recession in February, ending one of the longest economic expansions in history. 12

The depth and duration of this recession and the path to economic recovery remain highly uncertain. According to the most recent estimate published by the Congressional Budget Office (CBO), 13 the COVID-19 pandemic and associated social distancing triggered a sharp contraction in output in the second quarter of 2020 but the CBO projects that real Gross Domestic Product (GDP) will grow rapidly in the second half of 2020 and the first half of 2021. Strong GDP growth is projected to continue thereafter but at a slower pace. The unemployment rate is projected to peak at over 14 percent in the third quarter of this year and then to fall quickly as output increases in the second half of 2020 and throughout 2021. Nonetheless, real GDP growth is projected to be negative 5.8 percent for 2020 while the unemployment rate will be 10.6 percent for 2020. However, the CBO notes that there is an “unusually high degree of uncertainty” surrounding its projections due to the nature of the pandemic and the behavioral and policy responses aimed at containing its spread, and the difficulties of recording and compiling economic data during the unusually strong economic disruption in the second quarter of 2020.

The implications for the primary and secondary mortgage markets are still unfolding as policy makers consider responses to the economic disruption caused by COVID-19. Congress passed the CARES Act to address some of the most pressing impacts of the economic disruption, including by extending unemployment benefits. Nevertheless, the availability of credit has contracted in the mortgage market due to a variety of factors, including additional down payment and loan-to-value restrictions and generally tightened underwriting requirements.

FHFA is monitoring how these unfolding changes may impact various segments of the market, including those targeted by the housing goals. For instance, while the economic disruption has resulted in tightening of credit, job losses and uncertainty may also lead many low-income households to exit the market of potential homebuyers. However, the size of the impact on the share of low-income households among all home purchase mortgages is uncertain.

At the start of 2020, the American housing market overall was in a strong position. After falling for 12 consecutive years, the U.S. homeownership rate reached 65.1 percent in 2019, with first-time homebuyers becoming an increasingly larger share of the homebuying market, helping to drive its overall expansion. 14 Affordability challenges for low-income households remained, however. While interest rates have remained low since the recession, home prices have climbed steadily, with real prices back within 2 percent of their 2006 peak at the end of 2018, according to the FHFA House Price Index. The ratio of median home price to median household income is a common yardstick for measuring affordability, indicating how difficult it is for would-be buyers to qualify for a mortgage and save for a down payment. Nationwide, this ratio declined from a peak of 4.7 in 2005 to a low of 3.3 in 2011 and then rose to 4.1 in 2018. 15 However, during 2019, house price growth was starting to align with the growth in median household incomes.

In response to the COVID-19 pandemic, financial markets endured a severe dislocation in March, and housing markets were no exception. What is known to date is preliminary, as key housing market indicators—on housing construction, sales, prices, inventory, and more—indicate that the extent of disruption is extensive. At the same time housing supply remains tight, providing support to house prices. At least initially, the combination of social distancing measures and heightened economic concerns caused home sales to drop significantly and homebuilders to pull back on new housing starts. Single-family housing starts declined 17.5 percent in March and another 25.4 percent in April. Housing starts rose 4.3 percent in May, but this still leaves the rate down 23.2 percent compared to May 2019. 16

The full impact of the COVID-19 pandemic on the low-income home purchase market is unknown. However, the levels of output and employment remain far below their pre-pandemic levels, and significant uncertainty remains about the timing and strength of the recovery. It is likely that the full picture of the COVID-19 pandemic's impact on housing markets will not be known until well after the virus is contained. While the Enterprises showed strong goals performance in 2020 before the onset of the COVID-19 pandemic, it is unclear whether this will continue in the light of evolving market conditions and continued tightening of underwriting by lenders.

Thus, while recent Enterprise performance on the housing goals has tended to exceed the benchmark levels set by FHFA, the economic disruption and uncertainty seen so far in 2020 support keeping the levels unchanged from 2018-2020.

Table 1 provides the annual performance of both Enterprises on the single-family housing goals between 2010 and 2019. 17 The performance of the Enterprises in the two most recent years (2018 and 2019) shows that both Enterprises exceeded the benchmark levels set by FHFA for each of the single-family housing goals.

While the final determinations of Enterprise goal compliance for 2019 are pending FHFA's determination of the market level based on HMDA data, both Enterprises report that their performance exceeded the benchmark levels, continuing the recent trend of Enterprise performance above the benchmark levels for the single-family housing goals for 2018-2020.

Tables 2 through 5 provide additional detail on the recent performance of the Enterprises for each of the goals and the subgoal. The tables show the number as well as the share of goal-qualifying loans that the Enterprises acquired from 2013-2019. In 2018 and 2019, the Enterprises increased the number of goals-qualifying loans they acquired at the same time that their overall single-family mortgage purchase volume increased.

FHFA is proposing to establish the benchmark levels for each of the single-family housing goals and the subgoal for 2021 at the same levels that applied for 2018-2020. While recent Enterprise performance and market data have tended to exceed the established benchmark levels, FHFA expects that both the market levels and Enterprise performance could decline in 2021 due to impacts related to economic disruption caused by the COVID-19 pandemic. Information on Enterprise goals performance remains confidential until it is reported after the end of the year. However, FHFA monitors this confidential information on a regular basis. FHFA recognizes that the performance trends in the first half of 2020 reflect disruption due to COVID-19, and FHFA expects this to continue into 2021. Based on the above factors, FHFA believes that extending the benchmark levels from 2020 to 2021 will provide achievable yet challenging targets for the Enterprises.

The Safety and Soundness Act requires FHFA to consider the following six factors in setting the multifamily housing goals:

1. National multifamily mortgage credit needs and the ability of the Enterprises to provide additional liquidity and stability for the multifamily mortgage market;

2. The performance and effort of the Enterprises in making mortgage credit available for multifamily housing in previous years;

3. The size of the multifamily mortgage market for housing affordable to low-income and very low-income families, including the size of the multifamily markets for housing of a smaller or limited size;

4. The ability of the Enterprises to lead the market in making multifamily mortgage credit available, especially for multifamily housing affordable to low-income and very low-income families;

5. The availability of public subsidies; and

6. The need to maintain the sound financial condition of the Enterprises. 18

FHFA has considered each of these statutory factors in setting the proposed benchmark levels for each of the multifamily goals.

The multifamily housing goals are measured based on the total volume of affordable multifamily mortgage purchases rather than on a percentage of multifamily mortgage purchases. Unlike the single-family housing goals, performance on the multifamily housing goals is measured solely against a benchmark level, without any retrospective market measure. The absence of a retrospective market measure for the multifamily housing goals results, in part, from the lack of comprehensive data about the multifamily mortgage market. Unlike the single-family market, for which HMDA provides a reasonably comprehensive dataset about single-family mortgage originations each year, the multifamily market (including the affordable multifamily market segment) has no comparable source. Consequently, it can be difficult to correlate different datasets that usually rely on different reporting formats.

Another difference between the single-family and multifamily goals is that there are separate single-family housing goals for home purchase and refinancing mortgages, while the multifamily goals include all Enterprise multifamily mortgage purchases, regardless of the purpose of the loan. In addition, unlike the single-family housing goals, the multifamily housing goals are measured based on the total volume of affordable multifamily mortgage purchases rather than on a percentage of multifamily mortgage purchases. The use of total volumes, which FHFA measures by the number of eligible units, rather than percentages of each Enterprises' overall multifamily purchases, requires that FHFA take into account the expected size of the overall multifamily mortgage market and the affordable share of the market, as well as the expected volume of the Enterprises' overall multifamily purchases and the affordable share of those purchases. The lack of comprehensive data for the multifamily mortgage market is even more acute with respect to the segments of the market that are targeted to low-income families, defined as families with incomes at or below 80 percent of AMI, and very low-income families, defined as families with incomes at or below 50 percent of AMI. As required by the Safety and Soundness Act, FHFA determines affordability of multifamily units based on a unit's rent and utility expenses not exceeding 30 percent of the area median income standard for low- and very low-income families. 19

Even as late as February 2020, the multifamily originations market appeared as strong as it had been in 2019. At that time, FHFA noted a number of trends that have continued for multiple years, including the continued market focus on the construction of high-end, luxury apartments and the steady decline in the number of low-cost rentals. While completed rentals nearly reached a 30-year high in 2018 with an addition of 360,000 units, supply dropped by 340,000 units between 2016 and 2017. 20 Nationwide, there has been a loss of four million low-cost rental units (rents less than $800 per month) since 2011. 21 There is a particularly acute shortfall of affordable units for extremely low-income renters (earning up to 30 percent of area median income) that was acknowledged as a persistent problem even before the COVID-19 pandemic began. For instance, as a recent report from the Department of Housing and Urban Development  22 notes, it is increasingly difficult for housing developers and landlords to provide decent rental housing at rates that are affordable to American working families and more vulnerable households. In 2017, the most recent year for which such data are available, only 59 affordable units were available per 100 very low-income renter households, and only 40 units were available per 100 extremely low-income renter households.

The full impact on the stock of low-cost rental units in the wake of the COVID-19 pandemic and broader economic downturn is not yet known. In the short-term, the pandemic might exacerbate the already-constrained supply as lower housing mobility rates limit the number of low-cost options for renters and current residents stay in place. As one study using the 2018 American Community Survey data shows, demand for low-cost units was already high while their availability was extremely low. 23 Additional tightening at the low end of the market could pose significant affordability challenges to low- and middle-income renters.

Further, renters living in single-family homes and smaller multifamily buildings, along with the owners of those properties, are more likely to be negatively affected by the COVID-19 economic downturn. According to one study, over half of renters with at-risk wages  24 due to the pandemic live in single-family rental housing with 1-4 units. The same study estimates that nearly 20 percent of renters in small multifamily (5 to 50 units) dwellings may have difficulty paying full rent if at-risk wages are lost, compared to 12 percent of renters living in larger dwellings. This could, in turn, make it difficult for the owners of those properties, who are more likely to be small, individual investors, to remain financially stable through the pandemic. 25

Enterprise performance on the multifamily housing goals is heavily influenced by the caps on total multifamily business that FHFA has established as conservator of the Enterprises. The multifamily volume caps are intended to further FHFA's conservatorship goal: Maintaining the presence of the Enterprises as a backstop for the multifamily finance market, while not impeding the participation of private capital. The multifamily volume caps reflect an Enterprise share of the multifamily origination market that FHFA has determined to be an appropriate market share for the Enterprises during normal market conditions. The multifamily volume caps are intended to prevent the Enterprises from crowding out other capital sources and restrain the rapid growth of the Enterprises' multifamily businesses that started in 2011.

In September 2019, FHFA established multifamily loan purchase caps at $100 billion for each Enterprise during the five quarters beginning on October 1, 2019, and ending on December 31, 2020. The new cap framework requires that each Enterprise meet a target of 37.5 percent of its multifamily business as mission-driven, affordable housing. There is significant overlap between the types of multifamily mortgages that count toward the conservatorship scorecard target of 37.5 percent and the multifamily mortgages that contribute to the performance of the Enterprises under the affordable housing goals.

While the conservatorship scorecard caps and target level for mission-driven loans play a significant role in determining the multifamily purchase volume and affordable share for the Enterprise multifamily businesses, the multifamily housing goals target specific segments of the multifamily business and ensure appropriate Enterprise focus on those segments as required by the Safety and Soundness Act. In proposing benchmark levels for the Enterprise housing goals, FHFA has considered the required statutory factors and is proposing benchmark levels that would be achievable if the conservatorship scorecard caps and target levels for 2021 are similar to the conservatorship scorecard limits in effect for 2020. If the conservatorship scorecard has established the multifamily purchase volume caps applicable for 2021 at the time FHFA publishes a final rule setting benchmark levels for the multifamily housing goals, FHFA may adjust the benchmark levels based on those purchase volume caps.

The multifamily low-income housing goal is based on the total number of rental units in multifamily properties financed by mortgages purchased by the Enterprises that are affordable to low-income families, defined as families with incomes less than or equal to 80 percent of the area median income. Since 2016, each Enterprise has performed significantly above the benchmark level for the multifamily low-income housing goal each year.

The multifamily very low-income housing subgoal includes units affordable to very low-income families, defined as families with incomes no greater than 50 percent of area median income. Both Enterprises have surpassed the benchmark level for the multifamily very low-income housing subgoal by a significant margin in recent years.

The small multifamily low-income housing subgoal is based on the total number of units in small multifamily properties financed by mortgages purchased by the Enterprises that are affordable to low-income families, defined as families with incomes less than or equal to 80 percent of the area median income. A small multifamily property is defined as a property with 5 to 50 units. Both Enterprises have met the small multifamily low-income housing subgoal each year in recent years.

FHFA is proposing to establish the benchmark levels for each of the multifamily housing goal and subgoals for 2021 at the same levels that applied for 2018-2020. In proposing the benchmark levels for the multifamily low-income housing goal and the multifamily very low-income housing goal, FHFA considered the statutory factors including current economic conditions, national housing needs, recent market developments, the most recent conservatorship scorecard cap levels, and the past performance of the Enterprises in meeting each goal.

Due to the relatively low volume of small multifamily loans purchased by each Enterprise, the conservatorship scorecard cap has less impact on the ability of the Enterprises to meet the small multifamily low-income housing goal. Based on the recent performance of the Enterprises on the goal, FHFA believes the benchmark levels for 2018-2020 continue to be appropriate for 2021 to ensure that the Enterprises maintain a meaningful presence in the market for small multifamily loans.

While the recent performance of the Enterprises on the multifamily housing goals suggests that each Enterprise may be able to meet a higher benchmark level, FHFA has also considered a variety of factors including recent market trends and especially the economic disruption due to the COVID-19 emergency that support keeping the benchmark levels for the multifamily housing goals at the same level as the 2018-2020 goals. Based on the above factors, FHFA believes that extending the benchmark levels from 2020 to 2021  26 will provide achievable yet challenging targets for the Enterprises.

The Paperwork Reduction Act (44 U.S.C. 3501 et seq. ) requires that regulations involving the collection of information receive clearance from the Office of Management and Budget (OMB). The proposed rule does not contain any information collection requirement that would require OMB approval under the Paperwork Reduction Act. Therefore, FHFA has not submitted the rule to OMB for review.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) requires that a regulation that has a significant economic impact on a substantial number of small entities, small businesses, or small organizations must include an initial regulatory flexibility analysis describing the regulation's impact on small entities. Such an analysis need not be undertaken if the agency has certified that the regulation will not have a significant economic impact on a substantial number of small entities. 5 U.S.C. 605(b). FHFA has considered the impact of the proposed rule under the Regulatory Flexibility Act. The General Counsel of FHFA certifies that the proposed rule, if adopted as a final rule, will not have a significant economic impact on a substantial number of small entities because the regulation applies only to Fannie Mae and Freddie Mac, which are not small entities for purposes of the Regulatory Flexibility Act.

For the reasons stated in the Supplementary Information , under the authority of 12 U.S.C. 4511, 4513, and 4526, FHFA proposes to amend part 1282 of Title 12 of the Code of Federal Regulations as follows:

Comments Invited

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2020-0733; Project Identifier AD-2020-00990-E” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this NPRM because of those comments.

The FAA has been informed that GE has communicated with affected operators regarding the proposed corrective action for this unsafe condition. As a result, affected operators are already aware of the proposed corrective action and, in some cases, have already performed the actions proposed in this AD. Therefore, the FAA has determined that a 30-day comment period is appropriate given the proposed short cyclic compliance period to correct the unsafe condition on the affected GE90 model turbofan engines.

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

Confidential Business Information (CBI) is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Mehdi Lamnyi, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The FAA was notified of the detection of melt-related freckles in the billet during the forging inspection of HPT disks, which may reduce the life limits of certain HPT rotor stage 2 disks and certain rotating CDP HPT seals. The inspection process in place at the time of production did not identify these freckles. The manufacturer determined the need to reduce the life limits of the affected HPT rotor stage 2 disks and rotating CDP HPT seals. This AD requires removal of these affected parts before reaching their new life limits. This condition, if not addressed, could result in uncontained release of both the HPT rotor stage 2 disk and the rotating CDP HPT seal, damage to the engine, and damage to the aircraft.

The FAA is proposing this AD because the agency has determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

The FAA reviewed GE Service Bulletin (SB) GE90-100 S/B 72-0845, Revision 01, dated July 17, 2020. The SB describes procedures for removal of the HPT rotor stage 2 disk and the rotating CDP HPT seal from service. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

This proposed AD would require replacement of certain HPT rotor stage 2 disks and certain rotating CDP HPT seals.

The FAA considers this proposed AD an interim action. This issue is still under investigation by the manufacturer and, depending on the results of that investigation, the FAA may consider further rulemaking action.

The FAA estimates that this AD, as proposed, would affect 1 engine installed on an airplane of U.S. registry.

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

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

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

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

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

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

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

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

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

Authority for This Rulemaking

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

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket No. FAA-2020-0709; Airspace Docket No. 20-AEA-2) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the internet at https://www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2020-0709; Airspace Docket No. 20-AEA-2.” The postcard will be date/time stamped and returned to the commenter.

All communications received on or before the specified comment closing date will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the comment closing date. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

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

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the office of the Operations Support Group, Central Service Center, Federal Aviation Administration, 10101 Hillwood Blvd., Fort Worth, TX 76177.

This document proposes to amend FAA Order 7400.11D, Airspace Designations and Reporting Points, dated August 8, 2019, and effective September 15, 2019. FAA Order 7400.11D is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11D lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is planning decommissioning activities for the VOR portion of the Clarion, PA, VOR/DME in February, 2021. The Clarion VOR is a candidate VOR identified for discontinuance by the FAA's VOR MON program and listed in the final policy statement notice, “Provision of Navigation Services for the Next Generation Air Transportation System (NextGen) Transition to Performance-Based Navigation (PBN) (Plan for Establishing a VOR Minimum Operational Network),” published in the Federal Register of July 26, 2016 (81 FR 48694), Docket No. FAA-2011-1082. Although the VOR portion of the Clarion, PA, VOR/DME is planned for decommissioning, the co-located DME portion of the NAVAID is being retained to support Next Generation Air Transportation System (NextGen) PBN flight procedure requirements.

The ATS route dependencies to the Clarion VOR/DME are VOR Federal airways V-6, V-30, V-58, V-119, and V-226. With the planned decommissioning of the VOR portion of the Clarion VOR/DME, the remaining ground-based NAVAID coverage in the areas is insufficient to enable the continuity of the affected VOR Federal airways. As such, proposed modifications to the affected VOR Federal airways would result in the existing gaps in V-6 and V-30 being extended and V-58, V-119, and V-226 being shortened.

To overcome the airway gaps and loss of airway segments, instrument flight rules (IFR) traffic could use adjacent ATS routes, including V-10, V-12, V-37, V-41, V-43, V-106, and V-115, or receive air traffic control (ATC) radar vectors to fly through or circumnavigate the affected area. IFR pilots equipped with area navigation (RNAV) PBN capabilities could also navigate point to point using the existing fixes that will remain in place to support continued operations though the affected area. Visual flight rules (VFR) pilots who elect to navigate via the airways through the affected area could also take advantage of the air traffic services previously listed.

Additionally, the V-58 description includes the exclusionary language, “The airspace within R-4105 is excluded during times of use.” That exclusion language was added to the airway description, effective March 10, 1988, and has been unchanged since (53 FR 2007; January 26, 1988). However, later that same year, the FAA published a rule in the Federal Register (53 FR 37544; September 27, 1988), effective October 20, 1988, that subdivided restricted area R-4105 into R-4105A and R-4105B. Then, in 2014, the FAA published a rule in the Federal Register (79 FR 61989; October 16, 2014), effective November 17, 2014, that removed R-4105A and R-4105B. Therefore, the restricted area exclusion language in the V-58 description is no longer required.

The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 by modifying VOR Federal airways V-6, V-30, V-58, V-119, and V-226. The planned decommissioning of the VOR portion of the Clarion, PA, VOR/DME NAVAID has made this action necessary. The proposed VOR Federal airway changes are outlined below.

V-6: V-6 currently extends between the Oakland, CA, VOR/DME and the DuPage, IL, VOR/DME; between the intersection of the Chicago Heights, IL, VOR/Tactical Air Navigation (VORTAC) 358° and Gipper, MI, VORTAC 271° radials (NILES fix) and the intersection of the Gipper, MI, VORTAC 092° and Litchfield, MI, VOR/DME 196° radials (MODEM fix); and between the Clarion, PA, VOR/DME and the La Guardia, NY, VOR/DME. The FAA proposes to remove the airway segment overlying the Clarion, PA, VOR/DME between the Clarion, PA, VOR/DME and the Philipsburg, PA, VORTAC. The unaffected portions of the existing airway would remain as charted.

V-30: V-30 currently extends between the Badger, WI, VOR/DME and the Litchfield, MI, VOR/DME; and between the Clarion, PA, VOR/DME and the Solberg, NJ, VOR/DME. The FAA proposes to remove the airway segment overlying the Clarion, PA, VOR/DME between the Clarion, PA, VOR/DME and the Philipsburg, PA, VORTAC. The unaffected portions of the existing airway would remain as charted.

V-58: V-58 currently extends between the intersection of the Franklin, PA, VOR 176° and Clarion, PA, VOR/DME 222° radials (GRACE fix) and the Williamsport, PA, VOR/DME; and between the intersection of the Sparta, NJ, VORTAC 018° and Kingston, NY, VOR/DME 270° radials (HELON fix) and the Nantucket, MA, VOR/DME. The airspace within R-4105 is excluded during times of use. The FAA proposes to remove the airway segment between the Franklin, PA, VOR 176° and Clarion, PA, VOR/DME 222° radials (GRACE fix) and the Philipsburg, PA, VORTAC. Additionally, the restricted area exclusion language is proposed to be removed also. The unaffected portions of the existing airway would remain as charted.

V-119: V-119 currently extends between the Henderson, WV, VORTAC and the Clarion, PA, VOR/DME. The FAA proposes to remove the airway segment overlying the Clarion, PA, VOR/DME between the Indian Head, PA, VORTAC and the Clarion, PA, VOR/DME. The unaffected portions of the existing airway would remain as charted.

V-226: V-226 currently extends between the intersection of the Franklin, PA, VOR 175° and Clarion, PA, VOR/DME 222° radials (GRACE fix) and the Stillwater, NJ, VOR/DME. The FAA proposes to remove the airway segment overlying the Clarion, PA, VOR/DME between the intersection of the Franklin, PA, VOR 175° and Clarion, PA, VOR/DME 222° radials (GRACE fix) and the Keating, PA, VORTAC. The unaffected portions of the existing airway would remain as charted.

The NAVAID radials in the VOR Federal airway descriptions below are unchanged and stated in True degrees.

VOR Federal airways are published in paragraph 6010(a) of FAA Order 7400.11D, dated August 8, 2019, and effective September 15, 2019, which is incorporated by reference in 14 CFR 71.1. The ATS routes listed in this document would be subsequently published in the Order.

FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

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

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

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

Authority for This Rulemaking

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

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket No. FAA-2020-0735; Airspace Docket No. 19-ANE-8 and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the internet at https://www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2020-0735; Airspace Docket No. 19-ANE-8”. The postcard will be date/time stamped and returned to the commenter.

All communications received on or before the specified comment closing date will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

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

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the office of the Eastern Service Center, Federal Aviation Administration, Room 210, 1701 Columbia Ave., College Park, GA 30337.

This document proposes to amend FAA Order 7400.11D, Airspace Designations and Reporting Points, dated August 8, 2019, and effective September 15, 2019. FAA Order 7400.11D is publicly available as listed in the ADDRESSES section of this proposed rule. FAA Order 7400.11D lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 to amend VOR Federal airways V-141 and V-542, and to revoke airways V-151 and V-496, due to the planned decommissioning of the Lebanon, NH VOR/DME. An Area Navigation (RNAV) waypoint (WP) is being developed to be charted in the vicinity of the Lebanon VOR/DME location. The proposed changes are described below.

V-141: V-141 currently consists of two parts: first, extending between the Nantucket, MA, VOR/DME and the Boston, MA, VOR/DME; and second, extending between the Manchester, NH, VOR/DME and the Massena, NY, VORTAC. This proposal would remove the part between Manchester, NH, and Massena, NY. As amended, V-141 would extend between Nantucket, MA, and Boston, MA.

V-542: V-542 currently extends between the Elmira, NY, VOR/DME, and the Lebanon, NH, VOR/DME. The FAA proposes to remove the route segments of V-542 that extend between the Rockdale, NY, VOR/DME, and the Lebanon, NH, VOR/DME. As amended, V-542 would extend between Elmira, NY, and Rockdale, NY.

V-151: V-151 currently extends between the intersection of the Nantucket, MA, VOR/DME 334° and the Providence, RI VOR/DME 079° radials, and the Burlington, VT, VOR/DME. The FAA proposes to remove this entire route. A low altitude RNAV route is being developed to replace V-151.

V-496: V-496 currently extends between the Utica, NY, VORTAC, and the Kennebunk, ME, VOR/DME. This action proposes to remove the entire route.

Domestic VOR Federal airways are published in paragraph 6010(a) of FAA Order 7400.11D, dated August 8, 2019, and effective September 15, 2019, which is incorporated by reference in 14 CFR 71.1. The VOR Federal airways listed in this document would be subsequently published in, or removed from, the Order.

FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

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

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

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

This document and all comments received may be viewed online through the Federal eRulemaking portal at http://www.regulations.gov. It is available 24 hours each day, 365 days each year. Please follow the instructions online for more information and help. An electronic copy of this document may also be downloaded by accessing the Office of the Federal Register's home page at: http://www.archives.gov/federal-register and the Government Publishing Office's web page at: http://www.govinfo.gov/app/frtoc/today.

All comments received before the close of business on the comment closing date indicated above will be considered and will be available for examination in the docket at the above address. Comments received after the comment closing date will be filed in the docket and will be considered to the extent practicable. In addition to late comments, FHWA will also continue to file relevant information in the docket as it becomes available after the comment period closing date, and interested persons should continue to examine the docket for new material. A final rule may be published at any time after close of the comment period and after DOT has had the opportunity to review the comments submitted.

FHWA recognizes that it is in the public interest for utility facilities to use jointly the ROW of public roads and streets when such use and occupancy do not adversely affect highway or traffic safety, or otherwise impair the highway or its aesthetic quality, and does not conflict with Federal, State, or local laws and regulations. The opportunity for such joint use avoids the additional cost of acquiring separate ROW for the exclusive accommodation of utilities. As a result, the ROW of highways is often used to provide public services to abutting residents as well as to serve conventional highway needs.

Utility facilities, unlike most other fixed objects that may be present within the highway environment, are not owned nor are their operations directly controlled by State or local public agencies. Federal laws and FHWA regulations contained in 23 U.S.C. 109, 111, 116, and 123 and 23 CFR parts 1, 635, 645, and 710 regulate the accommodation, relocation, and reimbursement of utilities located within the highway ROW. State departments of transportation (State DOT) are required to develop Utility Accommodation policies that meet these regulations. 23 CFR 645.211.

The Consolidated Appropriations Act, 2018 (Pub. L. 115-141), Division P, Title VII (“MOBILE NOW Act”), Section 607, Broadband Infrastructure Deployment (47 U.S.C. 1504), directs the Secretary of Transportation to promulgate regulations to ensure that States meet specific registration, notification, and coordination requirements to facilitate broadband infrastructure deployment in the ROW of applicable Federal-aid highway projects. Accordingly, FHWA proposes to revise its regulations governing the accommodation of utilities to implement the Section 607 requirements. This rulemaking is required by statute. It addresses the need to update FHWA regulations to implement the Section 607 requirements.

Once the regulations take effect, the Section 607 requirements will apply to each State that receives funds under Chapter 1 of Title 23, U.S.C., including the District of Columbia and the Commonwealth of Puerto Rico. The MOBILE NOW Act defines the term “State” to mean a State, the District of Columbia, and the Commonwealth of Puerto Rico. 49 U.S.C. 1504(a)(4). The MOBILE NOW Act defines “appropriate State agency,” as “a State governmental agency that is recognized by the executive branch of the State as having the experience necessary to evaluate and carry out projects relating to the proper and effective installation and operation of broadband infrastructure.” 47 U.S.C. 1504(a)(1). In addition, the MOBILE NOW Act defines “broadband infrastructure” as “any buried, underground, or aerial facility, and any wireless or wireline connection, that enables users to send and receive voice, video, data, graphics, or any combination thereof,” 47 USCC 1504(a)(2), and “broadband infrastructure entity” as “any entity that installs, owns, or operates broadband infrastructure and provides broadband services in a manner consistent with the public interest, convenience, and necessity, as determined by the State.” 47 U.S.C. 1504(a)(3).

In proposed § 645.307(a), FHWA sets out four new requirements of the MOBILE NOW Act. Proposed § 645.307(a)(1) requires that the State DOT, in consultation with appropriate State agencies, identify a broadband utility coordinator who is responsible for facilitating the infrastructure ROW efforts within the State. Under the proposal, the coordinator may reside in the State DOT or in another State agency and may have additional responsibilities. 1 The primary burden of this provision is imposed on States, though States will likely vary considerably in their implementation of it. Some States, for example, may add this responsibility onto the role of an existing employee, while other States may hire a new person to assume this role. The FHWA assumes that another cost to States would be the cost to update their websites to provide information about the coordinator and their work. The FHWA expects that the duties of a broadband utility coordinator would be less than a full-time commitment, assuming roughly 30 percent of an employee's time. This provision would also result in time burdens for FHWA employees, including time to disseminate information and to prepare and present one external and one internal Webinar to explain the proposed requirements to State DOTs, and to conduct any follow-up activities related to the Webinars.

Consistent with Section 607 of the MOBILE NOW Act, FHWA is proposing in § 645.307(a)(2) to require the State DOT, in consultation with appropriate State agencies, to establish a registration process for broadband infrastructure entities that seek to be included. The FHWA believes that States may vary considerably in their approach for implementing this provision, and that States will likely choose an approach that fits with their existing processes. The FHWA assumes that States will spend time implementing this provision to establish the process, update their utility accommodation policy, notify broadband companies, and put the relevant information up on the States' websites. The FHWA assumes that these duties would require the most State employee time in the first year, and substantially less time in subsequent years. While FHWA does not have a formal role in the registration process, FHWA would likely incur costs associated with monitoring States' compliance with the requirements.

Consistent with Section 607 of the MOBILE NOW Act, FHWA is proposing in § 645.307(a)(3) to require the State DOT, in consultation with appropriate State agencies, to establish a process for electronically notifying broadband infrastructure entities identified under proposed § 645.307(a)(2), on an annual basis, of the State transportation improvement program and providing other notifications as necessary. To comply with this provision, FHWA assumes that States will create an electronic notification process, update their utility accommodation policies to include this new process, and also notify broadband companies of these changes. The costs to States would primarily be upfront, and there would be smaller annual costs to send the notifications in subsequent years.

Finally, FHWA proposes in § 645.307(a)(4) to require that the State DOT, in consultation with appropriate State agencies, coordinate initiatives under Section 607 of the MOBILE NOW Act with other statewide telecommunication and broadband plans and State and local transportation and land use plans, including strategies to minimize repeated excavations that involve broadband infrastructure installation in a ROW. The FHWA assumes this proposed provision will be handled by a statewide coordinator. The cost that States would incur to implement this proposed provision may vary considerably due to differing processes across States. The FHWA assumed that the duties associated with this provision would require 25 percent of the time of a management-level employee on an annual basis. The FHWA does not anticipate any costs to accrue to the Agency as a result of this proposed provision, as FHWA would not be directly involved in these coordination efforts.

Proposed § 645.307(b) contains the MOBILE NOW Act provision that, if a State chooses to provide for the installation of broadband infrastructure in the ROW of an applicable Federal-aid highway project, the State DOT must ensure that any existing broadband infrastructure entities are not disadvantaged, as compared to other broadband infrastructure entities, with respect to the Section 607 program. The FHWA assumes that this provision will not result in any time burdens or costs to FHWA, State DOTs, or broadband infrastructure entities.

Consistent with the MOBILE NOW Act, proposed § 645.309 provides that nothing in Part 645, Subpart C, requires that a State install or allow the installation of broadband infrastructure in a highway ROW, and that nothing in part 645, subpart C, authorizes the Secretary to withhold or reserve funds or approval of a Title 23 project. The FHWA again assumes that this provision will not result in any time burdens or costs to FHWA, State DOTs, or broadband infrastructure entities.

The FHWA requests comments on the proposed rule. The FHWA also requests comments and information regarding the assumptions used and other aspects of the economic analysis of the proposed rule to inform the economic analysis at the final rule stage. The FHWA presents the economic analysis in a supporting statement and a spreadsheet found in the rulemaking docket (FHWA-2019-0037) and summarizes the analysis under the “Executive Order 12866 (Regulatory Planning and Review), Executive Order 13563 (Improving Regulation and Regulatory Review), Executive Order 13771 (Reducing Regulation and Controlling Regulatory Costs), and DOT Regulatory Policies and Procedures” heading of this preamble.

The FHWA has determined that the proposed rule will not be a significant regulatory action within the meaning of Executive Order (E.O.) 12866 or DOT regulatory policies and procedures. 2 This action complies with E.O. 12866, 13563, and 13771 to improve regulation. The FHWA anticipates that the proposed rule would not adversely affect, in a material way, any sector of the economy. In addition, these changes would not interfere with any action taken or planned by another agency and would not materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs. The proposed rule also does not raise any novel legal or policy issues.

The following paragraphs summarize the economic analysis for this proposed rule. A supporting statement and a spreadsheet in the rulemaking docket (FHWA-2019-0037) contain additional details. The FHWA requests data and information that could inform the economic analysis for this rule, including any estimates of resulting benefits, at the final rule stage.

The FHWA estimated the costs of the proposed rule at $24.5 million for the 10-year period from 2020 through 2029, or $3.5 million on an annual basis, measured in 2018 dollars and using a 7 percent discount rate. If a 3 percent discount rate is used, these costs are estimated at $29.6 million for the same 10-year period, or $3.5 million on an annual basis, again measured in 2018 dollars.

Table 1 summarizes the economic impacts of the proposed rule that were able to be quantified at this stage of the regulatory process. The quantifiable impacts are the costs that the proposed rule would impose on States and also on FHWA. The costs of the proposed rule are primarily borne by States, with less than 1 percent of the total costs accruing to FHWA and the remaining more than 99 percent of costs accruing to States. Based on the estimated economic impacts and the other criteria for a significant regulatory action under Section 3(f) of E.O. 12866 and as supplemented by E.O. 13563, this proposed rule is not a significant regulatory action.

The FHWA anticipates that the proposed rule would result in benefits that would accrue primarily to broadband companies and to residents in areas adjacent to project sites. Several of the proposed provisions will result in increased coordination and cooperation between broadband companies and State DOTs. This increased coordination would have the effect of increasing the ability of broadband companies to conduct project work at times when roads are already closed or under construction for other purposes. Coordination of construction activities between State DOTs and broadband companies is likely to increase the efficiency of projects, and also result in fewer disruptions for area residents if road closures are coordinated rather than occurring at separate times for the purposes of State DOTs and broadband infrastructure. The FHWA, however, lacks the data and information necessary to quantify these potential benefits at this stage in the regulatory process. The FHWA requests data and information from commenters that could inform the economic analysis for this rule, including any estimates of resulting benefits or cost savings, or that could facilitate a quantification of costs, benefits, or cost savings at the final rule stage.

This proposed rule is not an E.O. 13771 regulatory action because it is not significant under E.O. 12866.

In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601-612), FHWA has evaluated the effects of this proposed rule on small entities and has determined that the action is not anticipated to have a significant economic impact on a substantial number of small entities. The proposed rule affects States, and States are not included in the definition of small entity set forth in 5 U.S.C. 601. The proposed rule would also affect broadband entities, but the impact on these entities is expected to be beneficial and also to involve potential cost savings. The proposed rule is thus not expected to result in increased costs for broadband entities. Therefore, FHWA certifies that the action will not have a significant economic impact on a substantial number of small entities.

This proposed rule would not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48). This proposed rule would not result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $155 million or more in any one year (2 U.S.C. 1532). Further, in compliance with the Unfunded Mandates Reform Act of 1995, FHWA will evaluate any regulatory action that might be proposed in subsequent stages of the proceeding to assess the effects on State, local, and Tribal governments and the private sector. In addition, the definition of “Federal Mandate” in the Unfunded Mandates Reform Act excludes financial assistance of the type in which State, local, or Tribal governments have authority to adjust their participation in the program in accordance with changes made in the program by the Federal Government. Finally, this proposed rule only implements requirements specifically set forth in statute.

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

The FHWA has analyzed this proposed rule in accordance with the principles and criteria contained in E.O. 13175, “Consultation and Coordination with Indian Tribal Governments.” The proposed rule implements statutory requirements that apply to States that receive Title 23 Federal-aid highway funds, and it would not have substantial direct effects on one or more Indian Tribes, would not impose substantial direct compliance costs on Indian Tribal governments, and would not preempt Tribal laws. Accordingly, the funding and consultation requirements of E.O. 13175 do not apply and a Tribal summary impact statement is not required.

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

The Agency has analyzed this proposed rulemaking action pursuant to the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ) and has determined that it is categorically excluded under 23 CFR 771.117(c)(1), which applies to activities that do not involve or lead directly to construction. Categorically excluded actions meet the criteria for categorical exclusions under the Council on Environmental Quality regulations (40 CFR 1508.4) and under 23 CFR 771.117(a) and normally do not require any further NEPA approvals by FHWA. This rulemaking proposes to include in FHWA regulations the coordination, registration, and notification requirements of 47 U.S.C. 1504 that are applicable to States that receive Title 23 Federal-aid highway funds. This rulemaking does not involve and will not lead directly to construction. The FHWA does not anticipate any environmental impacts, and there are no unusual circumstances present under 23 CFR 771.117(b).

A RIN is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document can be used to cross reference this action with the Unified Agenda.

In consideration of the foregoing, FHWA proposes to amend Part 645 of Title 23 of the CFR as set forth below:

Posting of Public Comments. Please note that all comments received are considered part of the public record and made available for public inspection online at http://www.regulations.gov. Such information includes personal identifying information (such as your name, address, etc.) voluntarily submitted by the commenter.

You are not required to submit personal identifying information in order to comment on this rule. Nevertheless, if you still want to submit personal identifying information (such as your name, address, etc.) as part of your comment, but do not want it to be posted online, you must include the phrase “PERSONAL IDENTIFYING INFORMATION” in the first paragraph of your comment. You also must locate all the personal identifying information you do not want posted online in the first paragraph of your comment and identify what information you want redacted.

If you want to submit confidential business information as part of your comment, but do not want it to be posted online, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You also must prominently identify confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted on http://www.regulations.gov.

Personal identifying information and confidential business information identified and located as set forth above will be placed in the agency's public docket file, but not posted online. If you wish to inspect the agency's public docket file in person by appointment, please see the FOR FURTHER INFORMATION CONTACT paragraph.

The Sex Offender Registration and Notification Act (“SORNA”), which is title I of the Adam Walsh Child Protection and Safety Act of 2006, Public Law 109-248, 34 U.S.C. 20901 et seq., establishes national standards for sex offender registration and notification in the United States. SORNA has a dual character, imposing registration obligations on sex offenders as a matter of Federal law that are federally enforceable under circumstances supporting Federal jurisdiction, see 18 U.S.C. 2250, and providing minimum national standards that non-Federal jurisdictions are expected to incorporate in their sex offender registration and notification programs, subject to a reduction of Federal funding for those that fail to do so, see 34 U.S.C. 20912(a), 20926-27.

The Justice Department's Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (“SMART Office”) administers the national standards for sex offender registration and notification under SORNA and assists all jurisdictions in implementing the SORNA standards in their programs. See id. 20945. As provided by SORNA, the Department of Justice also (i) prosecutes SORNA violations by sex offenders committed under circumstances supporting Federal jurisdiction, see 18 U.S.C. 2250; (ii) assists in the enforcement of sex offender registration requirements through the activities of the U.S. Marshals Service, see 34 U.S.C. 20941; (iii) operates, through the Federal Bureau of Investigation, the National Sex Offender Registry, which compiles the information obtained through the sex offender registration programs of the states and other registration jurisdictions and makes it available on a nationwide basis for law enforcement purposes, see id. 20921; and (iv) operates the Dru Sjodin National Sex Offender Public website, www.nsopw.gov, which provides public access through a single national site to the information about sex offenders posted on the public sex offender websites of the various registration jurisdictions, see id. 20922.

SORNA generally directs the Attorney General to “issue guidelines and regulations to interpret and implement [SORNA].” Id. 20912(b). SORNA also authorizes the Attorney General to take more specific actions in certain contexts.

One such provision is 34 U.S.C. 20913. That section states in subsection (b) that sex offenders are generally to register initially before release from imprisonment, or within three business days of sentencing if not sentenced to imprisonment, but it provides further in subsection (d) that the Attorney General has “the authority to specify the applicability of the requirements of [SORNA] to sex offenders convicted before the enactment of [SORNA] or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b).” As discussed below in connection with 28 CFR 72.3, section 20913(d) is not a constitutionally impermissible delegation of legislative authority. Rather, it enables the Attorney General to effectuate the legislative intent that SORNA apply to all sex offenders, regardless of when they were convicted.

Another relevant provision lists several types of information that sex offenders must provide for inclusion in sex offender registries, and states that sex offenders must also provide “[a]ny other information required by the Attorney General.” Id. 20914(a)(8). This provision as well is not an impermissible delegation of legislative authority, but rather is instrumental to the Attorney General's effectuating the legislative objective to “protect the public from sex offenders and offenders against children” by “establish[ing] a comprehensive national system for the registration of those offenders.” Id. 20901; see 73 FR at 38054-57; 76 FR at 1637. The Attorney General's exercise of the authority under section 20914(a)(8) is limited to requiring additional information that furthers the legislative public safety objective or the implementation or enforcement of SORNA's provisions. How that has been done is explained below in connection with proposed 28 CFR 72.6 and 72.7.

The Attorney General has exercised these authorities in previous rulemakings and issuances of guidelines under SORNA, as detailed in the rulemaking history and section-by-section analysis below, and the interpretations and policy decisions in this proposed rule follow those already adopted in existing SORNA-related documents. The present rule provides a concise and comprehensive statement of what sex offenders must do to comply with SORNA's requirements.

In addition to SORNA's original provisions, described above, this rulemaking draws on and implements provisions of the International Megan's Law to Prevent Child Exploitation and Other Sexual Crimes Through Advanced Notification of Traveling Sex Offenders (“International Megan's Law”), Public Law 114-119. Section 6 of International Megan's Law amended SORNA by (i) redesignating, in 34 U.S.C. 20914(a), former paragraph (7) as paragraph (8) and adding a new paragraph (7) that requires a sex offender to provide for inclusion in the sex offender registry information relating to intended travel outside the United States, including several specified types of information “and any other itinerary or other travel-related information required by the Attorney General”; (ii) adding a new subsection (c) to 34 U.S.C. 20914 that requires sex offenders to provide and update registration information required by SORNA “in conformity with any time and manner requirements prescribed by the Attorney General”; and (iii) adding a new subsection (b) to SORNA's criminal provision, 18 U.S.C. 2250, that specifically reaches international travel reporting violations.

This rulemaking is not innovative in terms of policy. Many of the requirements it articulates reflect express SORNA requirements. These include, inter alia, statutory specifications about (i) where and when sex offenders must register; (ii) several categories of required registration information; (iii) how long sex offenders must continue to register, including different registration periods for sex offenders in different tiers and lifetime registration for those in the highest tier; and (iv) a requirement to appear periodically to verify the registration information. See 34 U.S.C. 20911(2)-(4), 20913, 20914(a)(1)-(7), 20915, 20918.

Other features of the rule reflect exercises of the Attorney General's powers to implement SORNA's requirements. These include additional specifications regarding information sex offenders must provide, how and when they must report certain changes in registration information, and the time and manner for complying with SORNA's registration requirements by sex offenders who cannot comply with SORNA's normal registration procedures. On these matters, however, the proposed rule embodies the same policies as those appearing in the previously issued SORNA guidelines and prior rulemakings under SORNA.

The rule also makes no change in what registration jurisdictions need to do to substantially implement SORNA in their registration programs, a matter that will continue to be governed by the previously issued guidelines for SORNA implementation. While this rule does not make new policy, as discussed above, it is expected to have a number of benefits. The rule will facilitate enforcement of SORNA's registration requirements through prosecution of non-compliant sex offenders under 18 U.S.C. 2250. By providing a comprehensive articulation of SORNA's registration requirements in regulations addressed to sex offenders, it will provide a more secure basis for prosecution of sex offenders who engage in knowing violations of any of SORNA's requirements. It will also resolve a number of specific concerns that have arisen in past litigation or could be expected to arise in future litigation, if not clarified and resolved by this rule. For example, as discussed below, the amendment of § 72.3 in the rule will ensure that its application of SORNA's requirements to sex offenders with pre-SORNA convictions is given effect consistently, resolving an issue resulting from the decision in United States v. DeJarnette, 741 F.3d 971 (9th Cir. 2013).

Beyond the benefits to effective enforcement of SORNA's requirements, the rule will benefit sex offenders by providing a clear and comprehensive statement of their registration obligations under SORNA. This statement will make it easier for sex offenders to determine what they are required to do and thus facilitate compliance.

By facilitating the enforcement of, and compliance with, SORNA's registration requirements, the rule will further SORNA's public safety objectives. See 34 U.S.C. 20901. More consistent adherence to these requirements will enable registration and law enforcement authorities to better track and monitor released sex offenders in the community and enhance the basis for public notification regarding registered sex offenders that SORNA requires. See id. 20920, 20923.

Effective September 1, 2017, the provisions of SORNA, formerly appearing at 42 U.S.C. 16901 et seq., were recodified in a new title 34 of the United States Code, and now appear at 34 U.S.C. 20901 et seq. See http://uscode.house.gov/editorialreclassification/t34/index.html. United States Code citations of SORNA provisions in this proposed rule accordingly differ from the corresponding citations in earlier sources and documents.

This proposed rule is the ninth document the Attorney General has published pursuant to the statutory directive to the Attorney General to issue guidelines and regulations to interpret and implement SORNA. See 34 U.S.C. 20912(b). The previous SORNA-related documents are as follows:

(1) Interim rule entitled, “Applicability of the Sex Offender Registration and Notification Act,” published at 72 FR 8894 (Feb. 28, 2007). The interim rule solicited public comments, and the comment period ended on April 30, 2007. The interim rule added a new part 72 to title 28 of the Code of Federal Regulations, entitled “Sex Offender Registration and Notification.” The interim rule provided that “[t]he requirements of the Sex Offender Registration and Notification Act apply to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of that Act.” 28 CFR 72.3.

(2) Proposed guidelines, published at 72 FR 30210 (May 30, 2007), whose general purpose was to provide guidance and assistance to registration jurisdictions in implementing the SORNA standards in their sex offender registration and notification programs. The proposed guidelines solicited public comment, and the comment period ended on August 1, 2007.

(3) Final guidelines for registration jurisdictions regarding SORNA implementation entitled, “The National Guidelines for Sex Offender Registration and Notification” (the “SORNA Guidelines”), published at 73 FR 38030 (July 2, 2008).

(4) Proposed supplemental guidelines for SORNA implementation, published at 75 FR 27362 (May 14, 2010), whose general purpose was to address certain issues arising in SORNA implementation that required that some aspects of the SORNA Guidelines be augmented or modified. The proposed supplemental guidelines solicited public comment, and the comment period closed on July 13, 2010.

(5) Final rule entitled, “Applicability of the Sex Offender Registration and Notification Act,” published at 75 FR 81849 (Dec. 29, 2010). This rule finalized the February 28, 2007, interim rule providing for SORNA's applicability to all sex offenders, including those with pre-SORNA convictions.

(6) Final supplemental guidelines for SORNA implementation entitled, “Supplemental Guidelines for Sex Offender Registration and Notification” (the “SORNA Supplemental Guidelines”), published at 76 FR 1630 (Jan. 11, 2011).

(7) Proposed supplemental guidelines, published at 81 FR 21397 (Apr. 11, 2016), whose general purpose was to afford registration jurisdictions greater flexibility in their efforts to substantially implement SORNA's juvenile registration requirement. These proposed supplemental guidelines solicited public comment, and the comment period closed on June 10, 2016.

(8) Final supplemental guidelines regarding substantial implementation of SORNA's juvenile registration requirement entitled, “Supplemental Guidelines for Juvenile Registration Under the Sex Offender Registration and Notification Act,” published at 81 FR 50552 (Aug. 1, 2016).

The present proposed rule expands part 72 of title 28 of the Code of Federal Regulations to provide a full statement of the registration requirements for sex offenders under SORNA. It revises the statement of purpose and definitional sections in 28 CFR 72.1 and 72.2. It maintains the existing provision in 28 CFR 72.3 stating that SORNA's requirements apply to all sex offenders, regardless of when they were convicted, and incorporates additional language in § 72.3 to reinforce that point. It also adds to part 72 provisions—§§ 72.4 through 72.8—articulating where sex offenders must register, how long they must register, what information they must provide, how they must register and keep their registrations current to satisfy SORNA's requirements, and the liability they face for violations, following SORNA's express requirements and the prior articulation of standards for these matters in the SORNA Guidelines and the SORNA Supplemental Guidelines.

Section 72.1(a) states part 72's purpose to specify SORNA's registration requirements and their scope of application. It further notes that the Attorney General has the authority pursuant to provisions of SORNA to specify these requirements and their applicability as provided in part 72.

Section 72.1(b) states that part 72 does not preempt or limit any obligations of or requirements relating to sex offenders under other laws, rules, or policies. It further notes that states and other governmental entities may prescribe requirements, with which sex offenders must comply, that are more extensive or stringent than those prescribed by SORNA. This reflects the fact that SORNA provides minimum national standards for sex offender registration. It is intended to establish a floor rather than a ceiling for the registration programs of states and other jurisdictions, which can prescribe registration requirements binding on sex offenders under their own laws independent of SORNA. Jurisdictions accordingly are free to adopt more stringent or extensive registration requirements for sex offenders than those set forth in this part, including more stringent or extensive requirements regarding where, when, and how long sex offenders must register, what information they must provide, and what they must do to keep their registrations current. See 73 FR at 38032-35, 38046.

Section 72.2 states that terms used in part 72 have the same meaning as in SORNA. Hence, for example, references in the part to registration “jurisdictions” mean the 50 states, the District of Columbia, the five principal U.S. territories, and Indian tribes qualifying under 34 U.S.C. 20929. See id. 20911(10); 73 FR at 38045, 38048. Likewise, where the part uses such terms as sex offender (and tiers thereof), sex offense, convicted or conviction, sex offender registry, student, employee or employment, and reside or residence, the meaning is the same as in SORNA. See 34 U.S.C. 20911(1)-(9), (11)-(13); 73 FR at 38050-57, 38061-62.

Section 72.3 carries forward in substance current 28 CFR 72.3, which states that SORNA's requirements apply to all sex offenders, including those whose sex offense convictions predate SORNA's enactment. This section was initially adopted on February 28, 2007, and amended on December 29, 2010. The section and its rationale are explained further in the interim and final rulemakings that adopted it. See 72 FR 8894; 75 FR 81849.

Section 72.3, and its modification by this rulemaking, are constitutionally sound. In Smith v. Doe, 538 U.S. 84 (2003), the Supreme Court upheld the retroactive application of sex offender registration requirements against an ex post facto challenge, in reviewing a state registration system whose major features paralleled SORNA's in many ways. The commonalities between SORNA and the state registration program upheld in Smith include required registration before release from imprisonment; provision of name, address, employment, vehicle, and other registration information; continued registration and periodic verification of registration information for at least 15 years; lifetime registration and quarterly verification for certain registrants convicted of aggravated or multiple sex offenses; and public internet posting of information about registrants. See id. at 90-91. The Federal courts have consistently rejected ex post facto challenges to SORNA itself. See, e.g., United States v. Felts, 674 F.3d 599, 605-06 (6th Cir. 2012).

Section 72.3 also is not premised on any constitutionally impermissible delegation of legislative authority to the executive branch of government. Congress intended that SORNA apply to all sex offenders, regardless of when they were convicted. See Reynolds v. United States, 565 U.S. 432, 442-45 (2012); id. at 448-49 & n. (Scalia, J., dissenting) (agreeing that Congress intended for SORNA to apply to all sex offenders). Congress authorized the Attorney General to specify the applicability of SORNA's requirements to sex offenders with pre-SORNA and pre-SORNA-implementation convictions, see 34 U.S.C. 20913(d), in order to effectuate that intent while enabling the Attorney General to address transitional issues presented in integrating the existing sex offender population into SORNA's comprehensive nationwide registration system. See Reynolds, 565 U.S. at 440-42; 72 FR at 8895-97; 73 FR at 38035-36, 38046, 38063-64; 75 FR at 81850-52. In adopting § 72.3, the Attorney General implemented the relevant legislative policy—that SORNA's requirements should apply to all sex offenders—to the maximum, having found no reason to delay or qualify its implementation. Consequently, as an articulation of a legislative policy embodied in SORNA, the issuance of § 72.3 pursuant to 34 U.S.C. 20913(d) involved no exercise of legislative authority and did not contravene the non-delegation doctrine. See Gundy v. United States, 139 S. Ct. 2116, 2123-30 (2019) (plurality opinion); id. at 2130-31 (Alito, J., concurring in the judgment); id., Brief for the United States at 22-38.

Moreover, regardless of any question concerning the validity of 34 U.S.C. 20913(d), § 72.3 is adequately supported on the basis of the Attorney General's authority to issue guidelines and regulations to interpret and implement SORNA, appearing in 34 U.S.C. 20912(b). In § 72.3, the Attorney General interpreted SORNA as intended by Congress to apply to all sex offenders regardless of when they were convicted—an interpretation endorsed by the Supreme Court, see Reynolds, 565 U.S. at 440-45; see also Gundy, 139 S. Ct. at 2123-31—and he implemented that legislative policy by embodying it in a clearly stated rule.

The same considerations apply to the amended version of § 72.3 proposed here, which effectuates more reliably the legislative policy judgment that SORNA's requirements should apply to all sex offenders by restating the current rule with additional specificity, but which involves no change in substance. In comparison with the current formulation of § 72.3, this proposed rule adds a second sentence stating that (i) all sex offenders must comply with all requirements of SORNA, regardless of when they were convicted; (ii) this is so regardless of whether a registration jurisdiction has substantially implemented SORNA or any particular SORNA requirement; and (iii) this is so regardless of whether a particular requirement or class of sex offenders is mentioned in examples in the rules or guidelines issued by the Attorney General.

The first part of the added sentence reiterates § 72.3's specification of SORNA's applicability to all sex offenders in the form of an affirmative direction to sex offenders, and it states explicitly that all of SORNA's requirements so apply.

The added sentence further states that the registration duties SORNA prescribes for sex offenders are not conditional on registration jurisdictions' having adopted SORNA's requirements in their own registration laws or policies. For example, SORNA requires sex offenders to register in the states (and other registration jurisdictions) in which they reside, work, or attend school. See 34 U.S.C. 20913(a). All of the states have sex offender registration programs, which were initially established long before the enactment of SORNA. Hence, sex offenders are able to register in these existing state programs. The fact that a particular state has not modified its registration program at this time to incorporate the full range of SORNA requirements does not prevent a sex offender required to register by SORNA from registering in the state or excuse a failure to do so. See, e.g., Felts, 674 F.3d at 603-05.

The same principle applies in situations in which a jurisdiction's law does not track or incorporate a particular SORNA requirement affecting a sex offender. Consider a situation of this nature in which SORNA requires a sex offender to register but the law of the state in which he resides does not. This may occur, for example, because state law does not require registration based on the particular sex offense for which the offender was convicted, or because state law requires registration by sex offenders for shorter periods of time than SORNA, or because state law does not apply its registration requirements “retroactively” as broadly as § 72.3 applies SORNA's requirements to sex offenders with pre-SORNA convictions. Notwithstanding the absence of a parallel state law, the registration authorities in the state may be willing to register the sex offender because Federal law ( i.e., SORNA) requires him to register. Cf. Doe v. Keathley, 290 SW3d 719 (Mo. 2009) (state constitutional prohibition of retrospective laws does not preclude registration based on SORNA). If the state registration authorities are willing to register the sex offender, he is not relieved of the duty to register merely because state law does not track the Federal law registration requirement.

Hence, sex offenders can be held liable for violating any requirement stated in this rule, regardless of when they were convicted, and regardless of whether the jurisdiction in which the violation occurs has adopted the requirement in its own law. This does not mean, however, that SORNA unfairly holds sex offenders liable for failing to comply with its requirements, where the requirement is unknown to the sex offender or impossible for him to carry out. Cf. Felts, 674 F.3d at 605 (noting concern). Federal enforcement of SORNA's requirements occurs primarily through SORNA's criminal provision, 18 U.S.C. 2250. That provision makes it a Federal crime for a person required to register by SORNA to knowingly fail to register or update a registration as required by SORNA under circumstances supporting Federal jurisdiction, such as conviction of a Federal sex offense or interstate or foreign travel. As discussed below, section 2250 holds sex offenders liable only for violations of known registration obligations, and it excuses failures to comply with SORNA under certain conditions if the non-compliance results from circumstances beyond the sex offenders' control.

Consider first the concern that sex offenders may lack notice regarding registration obligations. Under the procedures prescribed by SORNA, and under standard procedures that have generally been adopted by registration jurisdictions whether or not they have implemented SORNA's requirements, the registration of sex offenders normally involves (i) informing sex offenders of their registration duties, (ii) obtaining from sex offenders signed acknowledgments confirming receipt of that information, and (iii) having sex offenders provide the required registration information. See 34 U.S.C. 20919(a); 73 FR at 38062-63.

Registration procedures of this nature inform sex offenders of what they must do, and the acknowledgments obtained from them provide evidence that they were so informed. See 76 FR at 1638. If a jurisdiction that registers a sex offender has not fully revised its processes for conformity to SORNA, then it may not tell the sex offender about some of the registration requirements imposed by SORNA, such as those that the jurisdiction has not incorporated in its own laws. If the jurisdiction fails to inform a sex offender about some of SORNA's registration requirements, the sex offender then does not know about some of his registration obligations under SORNA based on the information received from the jurisdiction, and may not learn of them from other sources. In such cases, the possibility of liability under 18 U.S.C. 2250 continues to be limited to cases in which a sex offender “knowingly fails to register or update a registration as required by [SORNA].” The limitation to “knowing[ ]” violations provides a safeguard against liability based on unwitting violations of SORNA requirements of which a sex offender was not aware. Section 72.8(a)(1)(iii) of this rule, and the accompanying discussion below, provide further explanation about the limitation of liability under 18 U.S.C. 2250 to cases involving violation of known registration obligations.

The second concern about fairness involves situations in which a sex offender has failed to do something SORNA requires because it is impossible for him to do so. For example, as noted above, a jurisdiction with laws that do not require registration based on the particular offense for which a sex offender was convicted may nevertheless be willing to register him in light of his Federal law (SORNA) registration obligation. But alternatively, the jurisdiction's law or practice may constrain its registration personnel to register only sex offenders whom its own laws require to register. In such a case, it is impossible for the sex offender to register in that jurisdiction, though subject to a registration duty under SORNA. This is so because registration is by its nature a two-party transaction, involving a sex offender's providing information about where he resides and other matters as required, and acceptance of that information by the jurisdiction for inclusion in the sex offender registry. If the jurisdiction is unwilling to carry out its side of the transaction, then the sex offender cannot register.

Concerns of this nature are also addressed in SORNA's criminal provision, 18 U.S.C. 2250. Subsection (c) of section 2250 provides an affirmative defense to liability for SORNA violations if “(1) uncontrollable circumstances prevented the individual from complying; (2) the individual did not contribute to the creation of such circumstances in reckless disregard of the requirement to comply; and (3) the individual complied as soon as such circumstances ceased to exist.” A registration jurisdiction's law or practice that precludes registration of a sex offender, as described above, is a circumstance that the sex offender cannot control and to which he did not contribute, so he cannot be held liable for failure to register with that jurisdiction as SORNA requires.

The defense in section 2250(c) comes with the proviso that the defendant must comply with SORNA “as soon as [the preventing] circumstances cease[ ] to exist.” For example, consider the case posed above of a jurisdiction that refuses to register sex offenders based on a particular offense for which SORNA requires registration, so that a sex offender residing in the jurisdiction who was convicted of that offense cannot register there. Suppose that the jurisdiction later progresses in its implementation of SORNA and becomes willing to register offenders who have been convicted for that sex offense. In light of the proviso, the sex offender's obligation to register revives once the jurisdiction becomes willing to register him. That is fair, because the circumstance preventing his compliance with the SORNA registration requirement no longer exists.

Section 72.8(a)(2) of this rule, and the accompanying discussion below, provide further explanation about the contours of the impossibility defense under 18 U.S.C. 2250(c).

Returning to the text of proposed § 72.3, the added sentence states at the end that sex offenders must comply with SORNA's requirements “regardless of whether any particular requirement or class of sex offenders is mentioned in examples in this regulation or in other regulations or guidelines issued by the Attorney General.” In conjunction with the earlier statement in the provision that all sex offenders must comply with all SORNA requirements, the added language responds to a judicial decision that did not give full effect to the current regulation.

Section 72.3, as currently formulated, states that SORNA's “requirements . . . apply to all sex offenders,” exercising the Attorney General's “authority to specify the applicability of the requirements of [SORNA] to sex offenders convicted before the enactment of [SORNA] or its implementation in a particular jurisdiction.” 34 U.S.C. 20913(d); see Reynolds, 565 U.S. at 441-45 (explaining Congress's decision to give the Attorney General authority to apply SORNA's requirements to sex offenders with pre-SORNA convictions). Nevertheless, in United States v. DeJarnette, 741 F.3d 971 (9th Cir. 2013), the court believed that the Attorney General had not made all of SORNA's requirements applicable to all sex offenders. The case concerned the applicability of SORNA's requirement that a sex offender register initially in the jurisdiction in which he is convicted, if it differs from his residence jurisdiction, see 34 U.S.C. 20913(a) (second sentence), where the sex offender's conviction predated SORNA's enactment. Notwithstanding 28 CFR 72.3, the court concluded that the Attorney General had not made this SORNA requirement applicable to sex offenders with pre-SORNA convictions, if they were already subject to state law registration requirements. DeJarnette, 741 F.3d at 982. The decision was largely premised on the fact that the particular SORNA requirement at issue was not mentioned in relation to that particular class of sex offenders in the examples of sex offenders subject to SORNA's requirements in 28 CFR 72.3 and the SORNA Guidelines. DeJarnette, 741 F.3d at 976-80.

The sentence added to § 72.3 by this rulemaking will foreclose future decisions of this nature and ensure that § 72.3's application of SORNA's requirements to all sex offenders is given effect consistently.

The proposed rule includes one further change in § 72.3, affecting the first example in the provision. The example as currently formulated describes a sex offender convicted in 1990 and released following imprisonment in 2007, and says that the sex offender is subject to SORNA's requirements. In Reynolds, the Supreme Court held that SORNA's requirements did not apply to sex offenders with pre-SORNA convictions prior to the Attorney General's exercise of the authority under 34 U.S.C. 20913(d) to specify SORNA's applicability to those offenders. 565 U.S. at 434-35. It follows that SORNA's requirements did not apply to such sex offenders before the Attorney General's original issuance of 28 CFR 72.3 on February 28, 2007. Example 1 in § 72.3 might be misunderstood as suggesting the contrary, i.e., that a sex offender with a pre-SORNA conviction released from imprisonment at any time in 2007 was immediately subject to SORNA's requirements. Hence, to avoid any possible inconsistency or apparent inconsistency with the Supreme Court's decision in Reynolds, the rule proposes to change the example by substituting a later year for 2007.

Section 72.4 tracks SORNA's express requirement that a sex offender must register and keep the registration current in each jurisdiction in which the sex offender resides, is an employee, or is a student, and must also initially register in the jurisdiction in which the offender was convicted if that jurisdiction differs from the jurisdiction of residence. See 34 U.S.C. 20913(a); 73 FR at 38061-62.

Section 72.5 sets out SORNA's requirements regarding the duration of registration. SORNA classifies sex offenders into three “tiers,” based on the nature and seriousness of their sex offenses and their histories of recidivism. See 34 U.S.C. 20911(2)-(4); 73 FR at 38052-54. The tier in which a sex offender falls affects how long the offender must continue to register under SORNA. The required registration periods are generally 15 years for a tier I sex offender, 25 years for a tier II sex offender, and life for a tier III sex offender. See 34 U.S.C. 20915(a); 73 FR at 38068. Paragraph (a) in § 72.5 reproduces these requirements.

Paragraph (a) of § 72.5 provides an exception “when the sex offender is in custody or civilly committed,” incorporating in substance an express proviso appearing in SORNA, 34 U.S.C. 20915(a). The exception and proviso mean that SORNA does not require a sex offender to carry out its processes for registering or updating registrations during subsequent periods of confinement, e.g., when imprisoned because of conviction for some other offense following his release from imprisonment for the sex offense. This reflects that “the SORNA procedures for keeping up the registration . . . generally presuppose the case of a sex offender who is free in the community” and that “[w]here a sex offender is confined, the public is protected against the risk of his reoffending in a more direct way, and more certain means are available for tracking his whereabouts.” 73 FR at 38068. However, registration jurisdictions may see incremental value in requiring sex offenders to carry out their processes for registering and updating registrations during subsequent confinement and are free to do so, though SORNA does not require it.

The proviso relating to custody or civil commitment does not pertain to or limit SORNA's requirement that initial registration is to occur while the sex offender is still imprisoned following conviction for the predicate sex offense. See 34 U.S.C. 20913(b)(1), 20919(a). Rather, as indicated above, it affects a sex offender's registration obligations under SORNA if he is later reincarcerated after his release. The proviso relating to custody or civil commitment also does not mean that the running of the SORNA registration period is suspended during such subsequent confinement, and does not otherwise affect the commencement or duration of a sex offender's registration period under SORNA.

For example, consider a sex offender, released in 2010 from imprisonment for a sex offense conviction, whom SORNA requires to register for 25 years as a tier II sex offender, and suppose the sex offender is subsequently convicted during the registration period for committing a robbery and imprisoned for three years for the latter offense. SORNA's registration requirement for that sex offender terminates in 2035, although he was incarcerated for three years of the 25-year SORNA registration period. Sex offenders should keep in mind, however, that their registration jurisdictions are free to impose more extensive requirements than SORNA, including longer registration periods. Hence, the basic registration period under the law of a jurisdiction in which such a sex offender is registered may be longer than 25 years. And even if the basic registration period under the jurisdiction's law is the same as the 25 years required by SORNA, the jurisdiction may choose not to credit the three years the sex offender spent in prison for the robbery towards the running of the registration period under state law. See 73 FR at 38032-35, 38046, 38068. Expiration of the SORNA registration period accordingly does not obviate the need for sex offenders to check with registration jurisdictions whether they remain subject to registration requirements under the jurisdictions' laws.

As provided in paragraph (b) of § 72.5, the registration period under SORNA begins to run upon release from imprisonment following a sex offense conviction, or at the time of sentencing for a sex offense where imprisonment does not ensue. See 73 FR at 38068. The sex offender's release from imprisonment, which marks the start of the registration period for an incarcerated sex offender, may occur later than the end of the sentence imposed for the sex offense itself. For example, suppose that a sex offender is convicted for a fatal sexual assault upon a victim, resulting in a sentence of three years of imprisonment for the sexual assault and a concurrent or consecutive sentence of 25 years of imprisonment for murder. Or consider a case in which a sex offender is sentenced to three years of imprisonment for a sexual assault and at a later time he is sentenced to 25 years of imprisonment for an unrelated murder, while still imprisoned for the sex offense. Or suppose that a sex offender is already serving a 25-year prison term for an unrelated murder, when he is sentenced to three years of imprisonment for a sexual assault. In all such cases, the registration period under SORNA starts to run when the sex offender actually completes his imprisonment and is released. It does not start to run while the sex offender is still imprisoned but has completed the portion of the sentence attributable to the sex offense.

This conclusion follows from the general design and specific requirements of SORNA's registration procedures. SORNA provides that incarcerated sex offenders must initially register “before completing a sentence of imprisonment with respect to the [registration] offense.” 34 U.S.C. 20913(b)(1). SORNA further states that the correlative responsibilities of registration officials in effecting the initial registration are to be carried out “shortly before release of the sex offender from custody.” Id. 20919(a); see 73 FR at 38063 (explaining requirement to register shortly before release from custody). Thereafter, sex offenders must “keep the registration[s] current” for specified periods of time, depending on their “tier[s].” 34 U.S.C. 20915(a). In light of these provisions, the registration period is logically understood as being framed at the start by the release from custody and at the end by the termination of the specified time period.

Considering specifically cases in which a sex offender is serving an aggregate prison term for multiple crimes, 34 U.S.C. 20913(b)(1) requires registration “before completing a sentence of imprisonment with respect to the offense giving rise to the registration requirement.” (Emphasis added). It does not require registration “before completing a sentence of imprisonment for the offense giving rise to the registration requirement.” The broader “with respect to” language is best understood to mean that the relevant prison term under section 20913(b)(1) is not the specific sentence imposed for the predicate sex offense alone, but rather is the full related sentence of imprisonment, including any prison time imposed for other crimes. The corresponding language in section 20919(a) supports this understanding, requiring initial registration of the sex offender “shortly before release of the sex offender from custody.” This language does not signify that initial registration is to occur when the sex offender is about to complete the portion of an aggregate sentence attributable specifically to the sex offense, though the sex offender will remain in custody because he is serving additional time for another offense or offenses. Rather, by its terms, section 20919(a) contemplates that initial registration will occur shortly before the sex offender is actually released, and section 20913(b)(1) must be understood in the same way, because section 20913(b)(1) and section 20919(a) describe the same transaction (initial registration) from different perspectives.

For example, consider the case of a sex offender convicted and sentenced for a fatal sexual assault, resulting in a three-year prison term for the sexual assault and a concurrent or consecutive 25-year sentence for murder. Suppose that the sexual assault involved was a sexual contact offense against an adult victim, resulting in the classification of the sex offender as a tier I sex offender and a registration period of 15 years. See 34 U.S.C. 20911(2)-(4), 20915(a)(1). If the registration period started to run at the end of the first three years of the sex offender's incarceration, then the 15-year registration period would expire long before the sex offender's release, because of the extension of his imprisonment by the murder sentence. This result would be at odds with section 20919(a)'s direction that sex offenders are to be initially registered “shortly before release . . . from custody,” because the sex offender's registration obligation under SORNA would be a thing of the past by that time, and also with the requirements under sections 20913 and 20915(a)(1) that the sex offender register and keep the registration current for 15 years, because his registration period would be over before he registered in the first place.

In addition to the inconsistency with the statutory provisions discussed above, starting the running of the registration period upon the conclusion of the portion of a sentence attributable to the registration offense would result in arbitrary differences in registration requirements, depending on fortuities in the structuring of criminal sentences or their descriptions in judgments. For example, considering again the case of a fatal sexual assault, suppose that the resulting sentence involves a three-year prison term for the sexual assault, followed by a consecutive 25-year prison term for murder. As discussed above, the assumed 15-year registration period for the sexual assault would then run out long before the sex offender's release, and he would never have to register at all. But suppose the sentence is cast instead as a 25-year prison term for murder, followed by a consecutive three-year prison term for the sexual assault. The completion of the prison term for the sexual assault would then coincide with the sex offender's release from prison, and he would have to register and keep the registration current for 15 years. Because the ordering of the sexual assault and murder sentences has no relevance to the public safety purposes served by sex offender registration, the discrepancy between the two cases as to resulting registration requirements would be irrational. For this reason as well, the registration period under SORNA starts to run when the sex offender is actually released, and not at an earlier time upon completion of the portion of an aggregate sentence specifically attributable to the predicate sex offense.

By way of comparison, an offender's term of post-imprisonment supervised release for a sex offense does not start to run until he is released from prison, including in cases in which the offender's release is delayed by his serving additional prison time for another offense or offenses. This is not unfair or illogical; it rationally reflects the nature of supervision as a measure designed for overseeing and managing offenders following their release. While sex offender registration differs from supervision in being a non-punitive, civil regulatory measure, see, e.g., Smith, 538 U.S. at 92-106; Felts, 674 F.3d at 605-06, it is likewise concerned with the post-release treatment of sex offenders in the community. Hence, as with periods of supervision, it is rational for an offender's registration period for a sex offense to begin to run when he is released from prison, including in cases in which the offender's release is delayed by his serving additional prison time for other criminal conduct. This reflects the nature of registration as a measure designed for tracking and monitoring sex offenders following their release.

The principle that the registration period under SORNA commences on release also applies to cases in which the sex offender is not imprisoned for the sex offense per se but is imprisoned because of conviction for another offense. For example, suppose that a sex offender is convicted of sexually assaulting and robbing a victim, resulting in a sentence of probation for the sexual assault and a sentence of five years of imprisonment for the robbery. Considering the relevant statutory provisions, section 20913(b)(2) makes applicable an alternative time for initial registration—three business days after sentencing—only “if the sex offender is not sentenced to a term of imprisonment.” Correspondingly, section 20919(a) provides for initial registration immediately after sentencing, rather than shortly before release from custody, only “if the sex offender is not in custody.” These provisions, by their terms, do not apply to a sex offender who remains in custody, though on the basis of an offense other than the predicate sex offense. Hence, cases of this nature must fall under the requirement of sections 20913(b)(1) and 20919(a) to effect initial registration shortly before the sex offender's release, and the consequences are the same as in the cases discussed above involving aggregate prison terms for the registration offense and other crimes. Where the sex offender receives a non-incarcerative sentence for the registration offense and a prison term for another offense, the registration period starts upon the sex offender's release, so that once registered and out in the community he must keep the registration current for the full registration period specified in 34 U.S.C. 20915, and not just for a truncated period reduced by his incarceration for another offense.

In terms of underlying policy, registration is by definition concerned with tracking sex offenders in the community following their release. See 73 FR at 38044-45. The tiers and the associated registration periods under SORNA reflect categorical legislative judgments as to how long sex offenders should be tracked following release for public safety purposes. These judgments do not come into play until the sex offender is released. When that happens may be affected by many factors—such as the length of the prison term the sex offender receives for the sex offense; whether the sex offender makes parole (in a state system having parole) or gets good-conduct credit; whether the jurisdiction adopts an early release program because of prison crowding; and whether the sex offender gets additional prison time because of sentencing for other offenses, related or unrelated to the sex offense.

Whatever the reasons may be, it is logical to start a post-release tracking regime— i.e., registration—when the sex offender is actually released. Initial registration is to occur “shortly before” that, as 34 U.S.C. 20919(a) requires, “in light of the underlying objectives of ensuring that sex offenders have their registration obligations in mind when they are released, and avoiding situations in which registration information changes significantly between the time the initial registration procedures are carried out and the time the offender is released.” 73 FR at 38063.

Hence, the registration period under SORNA starts to run when a sex offender is released from imprisonment, and not at an earlier time when the specific sentence for the registration offense has been served, if the two times differ. This follows from the features of the statutory provisions discussed above, from the absurdities entailed by a different interpretation, and from the basic character of registration as a post-release tracking measure. To the extent that there might be any uncertainty or argument to the contrary, the Attorney General in this rule exercises his authority under 34 U.S.C. 20912(b) to interpret and implement SORNA's provisions affecting the duration of registration in the manner stated.

Paragraph (c) in § 72.5 sets out SORNA's reduction of its registration period for certain sex offenders who maintain a “clean record” in accordance with statutory standards. The specific “clean record” conditions are that the sex offender not be convicted of any felony or any sex offense, successfully complete any period of supervision, and successfully complete an appropriate sex offender treatment program (certified by a registration jurisdiction or the Attorney General). The SORNA registration period is reduced by five years for a tier I sex offender who maintains a clean record for 10 years, and reduced to the period for which the clean record is maintained for a tier III sex offender required to register on the basis of a juvenile delinquency adjudication who maintains a clean record for 25 years. See 34 U.S.C. 20915(a), (b); 73 FR at 38068-69.

Section 72.6 sets out the registration information sex offenders must provide. Much of the specified information is expressly required by SORNA, see 34 U.S.C. 20914(a)(1)-(7), and the remainder reflects SORNA's direction that sex offenders must provide “[a]ny other information required by the Attorney General,” id. 20914(a)(8).

In general terms, the required information comprises (i) name, birth date, and Social Security number; (ii) remote communication identifiers (including email addresses and telephone numbers); (iii) information about places of residence, non-residential lodging, employment, and school attendance; (iv) international travel; (v) passports and immigration documents; (vi) vehicle information; and (vii) professional licenses. By providing basic information about who a sex offender is, where he is, how he gets around, and what he is authorized to do, these requirements implement SORNA and further its public safety objectives.

Paragraph (a)(1) of § 72.6 requires that a sex offender provide his name, including any alias, which is an express SORNA requirement. S ee 34 U.S.C. 20914(a)(1); 73 FR at 38055.

Paragraph (a)(2) of § 72.6 requires a sex offender to provide date of birth information, a requirement the Attorney General has adopted in the SORNA Guidelines and this rule because date of birth information is regularly utilized as part of an individual's basic identification information and hence is of value in helping to identify, track, and locate registered sex offenders. The paragraph requires that any date that the sex offender uses as his or her purported date of birth must be provided, in addition to the actual date of birth, because sex offenders may, for example, provide false date of birth information in seeking employment that would provide access to children or other potential victims. See 73 FR at 38057.

Paragraph (a)(3) of § 72.6 requires that a sex offender provide his Social Security number, which is an express SORNA requirement. See 34 U.S.C. 20914(a)(2). The paragraph further requires provision of any number that a sex offender uses as his purported Social Security number. The Attorney General has adopted the latter requirement—already appearing in the SORNA Guidelines in 2008—because sex offenders may, for example, attempt to use false Social Security numbers in seeking employment that would provide access to children or other potential victims. See 73 FR at 38055.

Paragraph (b) of § 72.6 requires a sex offender to provide all remote communication identifiers that he uses in internet or telephonic communications or postings, including email addresses and telephone numbers. A provision of the Keeping the internet Devoid of Sexual Predators Act of 2008 (KIDS Act), Public Law 110-400, directed the Attorney General to use the authority under paragraph (7) of 34 U.S.C. 20914(a) [now designated paragraph (8)] to require sex offenders to provide internet identifiers. The Attorney General has previously exercised that authority to require the specified information in the SORNA Guidelines. See 34 U.S.C. 20916(a); 73 FR at 38055; 76 FR at 1637. The Attorney General has exercised the same authority to require telephone numbers—a requirement also already appearing in the SORNA Guidelines—for a number of reasons, including facilitating communication between registration personnel and sex offenders, and addressing the potential use of telephonic communication by sex offenders in efforts to contact or lure potential victims. See 73 FR at 38055.

Paragraph (c)(1) of § 72.6 requires a sex offender to provide residence address information or other residence location information if the sex offender lacks a residence address. Providing residence address information is an express SORNA requirement. See 34 U.S.C. 20914(a)(3). In the SORNA Guidelines, and now in this rule, the Attorney General has adopted the requirement to provide other residence location information for sex offenders who do not have residence addresses, such as homeless sex offenders or sex offenders living in rural areas that lack street addresses, because having this type of location information serves the same public safety purposes as knowing the whereabouts of sex offenders with definite residence addresses. See 73 FR at 38055-56, 38061-62.

Paragraph (c)(2) of § 72.6 requires a sex offender to provide information about temporary lodging while away from his residence for seven or more days. In the SORNA Guidelines, and now in this rule, the Attorney General has adopted this requirement because sex offenders may reoffend at locations away from the places in which they have a permanent or long-term presence, and indeed could be encouraged to do so to the extent that information about their places of residence is available to the authorities but information is lacking concerning their temporary lodgings elsewhere. The benefits of having this information include facilitating the successful investigation of crimes committed by sex offenders while away from their normal places of residence and discouraging sex offenders from committing crimes in such circumstances. See 73 FR at 38056.

Paragraph (c)(3) of § 72.6 requires a sex offender to provide employer name and address information, or other employment location information if the sex offender lacks a fixed place of employment. Providing employer name and address information is an express SORNA requirement. See 34 U.S.C. 20914(a)(4). The Attorney General has adopted, in the SORNA Guidelines and this rule, the requirement to provide other employment location information for sex offenders who work but do not have fixed places of employment— e.g., a long-haul trucker whose “workplace” is roads and highways throughout the country, a self-employed handyman who works out of his home and does repair or home improvement work at other people's homes, or a person who frequents sites that contractors visit to obtain day labor and works for any contractor who hires him on a given day. The Attorney General has adopted this requirement because knowing where such sex offenders are in the course of employment serves the same public safety purposes as knowing the whereabouts of sex offenders who work at fixed locations. See 73 FR at 38056, 38062.

Paragraph (c)(4) of § 72.6 requires a sex offender to provide the name and address of any place where the sex offender is or will be a student, an express SORNA requirement. See 34 U.S.C. 20914(a)(5); 73 FR at 38056-57, 38062.

Paragraph (d) of § 72.6 requires a sex offender to provide information about intended travel outside of the United States. This is an express SORNA requirement, added by International Megan's Law. See 34 U.S.C. 20914(a)(7); Public Law 114-119, sec. 6(a)(1). A related provision in § 72.7(f) of this rule requires sex offenders to report international travel information at least 21 days in advance. Exercising the general authority under paragraph (8) of 34 U.S.C. 20914(a) [then designated paragraph (7)] to expand the required range of registration information, the Attorney General initially adopted these requirements in the SORNA Supplemental Guidelines, see 76 FR at 1637-38, even before the enactment of International Megan's Law, for a number of reasons:

(i) Realizing SORNA's public safety objectives requires that registered sex offenders be effectively tracked as they leave and return to the United States, and that other sex offenders who enter the United States be identified, so that domestic registration and law enforcement authorities know about the sex offenders' presence in the United States and can ensure that they register while here as SORNA requires. To that end, SORNA directs the Attorney General to establish and maintain a system for informing relevant registration jurisdictions about persons entering the United States whom SORNA requires to register. See 34 U.S.C. 20930. Sections 72.6(d) and 72.7(f) of this rule are part of that system, requiring registered sex offenders to inform their registration jurisdictions about travel abroad, including information that encompasses both their departure from and return to the United States. Beyond this direct benefit, learning about sex offenders' entry into the United States may depend on notice from the authorities of the countries they come from—authorities who may expect reciprocal notice about sex offenders traveling to their countries from the United States. Having U.S. sex offenders inform their registration jurisdictions of travel abroad provides information that is used by U.S. authorities, including the U.S. Marshals Service and INTERPOL Washington-U.S. National Central Bureau, to notify the authorities in the destination countries about sex offenders traveling to their areas. These foreign authorities may in return advise U.S. authorities about sex offenders traveling to the United States from their countries, facilitating the notification of domestic registration jurisdictions about the sex offenders' presence that section 20930 contemplates. See 73 FR at 38066; 76 FR at 1637.

(ii) Sex offenders traveling abroad may remain subject in some respects to U.S. jurisdiction, e.g., because a sex offender intends to go to an overseas U.S. military base or to work as or for a U.S. military contractor in another country. In such cases, the intended travel of the sex offender may implicate the same public safety concerns in relation to communities abroad for which the United States has responsibility as it does in relation to communities within the United States. See 73 FR at 38067; 76 FR at 1637-38.

(iii) More broadly, for a sex offender disposed to reoffend, it may be attractive to travel to foreign countries where law enforcement is weaker (or perceived to be weaker), where sexually trafficked children or other vulnerable victims may be more readily available, and where the registration and notification measures to which the sex offender is subject in the United States are inoperative. The United States does not wish to export the public safety threat posed by its sex offenders to other countries. Requiring sex offenders in the United States to inform their registration jurisdictions about international travel provides a basis for notifying foreign authorities in the destination countries, which helps to reduce the resulting risks. If these sex offenders do reoffend in other countries, the resulting human harm to victims is no less because it occurs in a foreign country, and the United States' image and foreign relations interests may be adversely affected as well. Sex offenders from the United States who commit sex offenses in other countries may be subject to prosecution under various Federal laws, which reflect the United States' policy of, and commitment to, combating the commission of crimes of sexual abuse and exploitation internationally as well as domestically. See, e.g., 18 U.S.C. 1591, 2251(c), 2260, 2423. Consistent tracking of international travel by sex offenders helps to deter and prevent such crimes, and to facilitate their investigation if they occur.

Beyond creating a general requirement to report travel outside of the United States at least 21 days in advance, the SORNA Supplemental Guidelines authorized the requirement of more definite information about international travel plans. 76 FR at 1638 (additional directions may be issued by the SMART Office “concerning the information to be required in sex offenders' reports of intended international travel, such as information concerning expected itinerary, departure and return dates, and means and purpose of travel”); see Information Required for Notice of International Travel, http://ojp.gov/smart/international_travel.htm (providing such directions). Section 72.6(d) in this rule specifically directs sex offenders traveling abroad to report information regarding any anticipated itinerary, dates and places of departure, arrival, or return, carrier and flight numbers for air travel, destination countries and address or contact information therein, and means and purpose of travel. More detailed information of this type is needed because notice only that a sex offender intends to travel somewhere outside of the United States at some time three weeks or more in the future would be inadequate to realize the objectives of international tracking of sex offenders—objectives that include, as discussed above, notification as appropriate of U.S. and foreign authorities in destination countries for public safety purposes, preventing and detecting the offenders' commission of sex offenses in other countries, and reliably tracking sex offenders as they leave and enter the United States for purposes of enforcing registration requirements. Requiring the specified information concerning international travel is justified by its value in furthering these objectives. See 73 FR at 38066-67; 76 FR at 1634, 1637-38.

Congress endorsed these objectives and the stated conclusion in International Megan's Law, whose purposes include “[t]o protect children and others from sexual abuse and exploitation, including sex trafficking and sex tourism, by providing advance notice of intended travel by registered sex offenders outside the United States to the government of the country of destination [and] requesting foreign governments to notify the United States when a known sex offender is seeking to enter the United States.” Public Law 114-119; see 162 Cong. Rec. H390-94 (Feb. 1, 2016) (explanation in House floor debate on passage). As noted above, the measures adopted by International Megan's Law in support of its international notification system include an express requirement that sex offenders report intended international travel, making this requirement a permanent feature of SORNA that exists independently of regulatory action. See 34 U.S.C. 20914(a)(7); Public Law 114-119, sec. 6(a)(1).

Section 72.6(d) in this rule follows the new SORNA travel information provision added by International Megan's Law, which states that sex offenders must provide “[i]nformation relating to intended travel of the sex offender outside the United States, including any anticipated dates and places of departure, arrival, or return, carrier and flight numbers for air travel, destination country and address or other contact information therein, means and purpose of travel, and any other itinerary or other travel-related information required by the Attorney General.” 34 U.S.C. 20914(a)(7). A sex offender must report all anticipated information in these categories in relation to both the United States and destination countries as the language of § 72.6(d) makes clear. For example, a sex offender who is leaving the United States must report any anticipated date and place of departure from the United States, and also any anticipated date and place of return to the United States if the sex offender expects to return. Likewise, with respect to each foreign country to be visited, the sex offender must report any anticipated date and place of arrival in that country and any anticipated date and place of departure from that country.

Paragraph (e) of § 72.6 requires a sex offender to provide information concerning any passport or passports he has, and concerning documents establishing his immigration status if he is an alien. The passports referenced in the paragraph include passports of all types and nationalities, not just U.S. passports. Where the sex offender has multiple passports, as may occur, for example, in cases involving dual citizenship, the paragraph's reference to “each passport” the sex offender has means that the sex offender must report all of his passports. The Attorney General has included information about passports and immigration documents as required registration information in the SORNA Guidelines and in this rule because having this type of information in the registries serves various purposes. These include locating and apprehending registrants who may attempt to leave the United States after committing new sex offenses or registration violations, facilitating the tracking and identification of registrants who leave the United States but later reenter while still required to register, see 34 U.S.C. 20930, and crosschecking the accuracy and completeness of other types of information that registrants are required to provide— e.g., if immigration documents show that an alien registrant is in the United States on a student visa but the registrant fails to provide school attendance information as required by 34 U.S.C. 20914(a)(5). See 73 FR at 38056.

Paragraph (f) of § 72.6 requires a sex offender to provide information concerning any vehicle owned or operated by the sex offender, information concerning the license plate number or other registration number or identifier for the vehicle, and information as to where the vehicle is habitually kept. In part, the paragraph reflects the express SORNA requirement in 34 U.S.C. 20914(a)(6) that a sex offender provide “[t]he license plate number and a description of any vehicle owned or operated by the sex offender.” This includes, in addition to vehicles registered to the sex offender, any vehicle that the sex offender regularly drives, either for personal use or in the course of employment. See 73 FR at 38057. The remainder of the paragraph reflects the Attorney General's requirement (previously adopted in the SORNA Guidelines) of additional vehicle-related information that serves similar purposes or may be useful to help prevent flight, facilitate investigation, or effect an apprehension if the sex offender commits new offenses or violates registration requirements. See id.

Paragraph (g) of § 72.6 requires a sex offender to provide information concerning all licensing of the offender that authorizes him to engage in an occupation or carry out a trade or business. The Attorney General has adopted this requirement, initially in the SORNA Guidelines and now in this rule, because information of this type (i) may be helpful in locating a registered sex offender if he absconds, (ii) may provide a basis for notifying the responsible licensing authority if the offender's conviction of a sex offense may affect his eligibility for the license, and (iii) may be useful in crosschecking the accuracy and completeness of other information the offender is required to provide— e.g., if the sex offender is licensed to engage in a certain occupation but does not provide name or place of employment information as required by 34 U.S.C. 20914(a)(4) for such an occupation. See 73 FR at 38056.

SORNA requires sex offenders to register and keep the registrations current in jurisdictions in which they reside, work, or attend school. Section 72.7 sets out the procedures for doing so, addressing the timing requirements for registering and updating registrations, the jurisdictions to which changes in registration information must be reported, and the means for reporting such changes. In general terms, the section requires (i) initial registration before release from imprisonment, or within three business days after sentencing if the sex offender is not imprisoned; (ii) periodic in-person appearances to verify and update the registration information; (iii) reporting of changes in name, residence, employment, or school attendance; (iv) reporting of intended departure or termination of residence, employment, or school attendance in a jurisdiction; (v) reporting of changes relating to remote communication identifiers, temporary lodging information, and vehicle information; (vi) reporting of international travel; and (vii) compliance with a jurisdiction's rules if a sex offender has not complied with the normal time and manner specifications for carrying out a SORNA requirement.

The requirements articulated in this section in part appear expressly in SORNA and in part reflect exercises of the powers SORNA confers on the Attorney General to further specify its requirements. The authorities relied on include the following: SORNA directs the Attorney General to issue rules and guidelines to “interpret and implement” its provisions, which include the basic requirement that each sex offender must “register . . . and keep the registration current.” 34 U.S.C. 20912(b), 20913(a). Previously in the SORNA Guidelines, see 73 FR at 38062-67, and now in this rule, the Attorney General interprets his authority to “interpret and implement” SORNA as including the authority to articulate a comprehensive, gap-free set of procedural requirements for registering and updating registrations. Authority of this nature is needed to implement SORNA in conformity with the legislative objective of protecting the public from sex offenders by establishing a comprehensive national system for their registration. 34 U.S.C. 20901. Beyond the public safety need, this understanding of section 20912(b) “takes Congress to have filled potential lacunae” in SORNA in a manner consistent with fair notice concerns, empowering the Attorney General to eliminate any “vagueness and uncertainty” regarding how sex offenders are to comply with SORNA's registration requirements. Reynolds, 565 U.S. at 441-42.

The Attorney General's authority to interpret and implement SORNA includes in particular the authority to adopt additional specifications regarding the time and manner in which its requirements must be carried out. For example, SORNA expressly requires that sex offenders must appear in person to report changes of name, residence, employment, and student status within three business days of such changes. 34 U.S.C. 20913(c). But SORNA does not expressly require the reporting within a particular timeframe of changes relating to other types of registration information that also bear directly and importantly on the identification, tracking, and location of sex offenders. These include remote communication identifiers (such as email addresses), temporary lodging information, international travel information, and vehicle information, as described in § 72.6(b), (c)(2), (d), and (f) of this rule. Absent a requirement that changes in these types of information be reported promptly, the information in the registries about these matters could become seriously out of date, which would in turn impair SORNA's basic objective of effectively tracking and locating sex offenders in the community following their release. See 73 FR at 38044-45, 38066-67. The Attorney General accordingly has adopted definite timing requirements for reporting changes in these types of information, previously in the guidelines for SORNA implementation, and now in § 72.7(e)-(f) in this rule.

Adopting such rules reflects an exercise of the Attorney General's authority to “interpret and implement” SORNA, 34 U.S.C. 20912(b), and more specifically to interpret and implement SORNA's requirement that sex offenders must “keep the registration current,” id. 20913(a). While the heading of subsection (c) of section 20913 is “[k]eeping the registration current,” the heading only signifies that the subsection sets out an updating rule for the most basic types of registration information. It does not signify that nothing more can be required to keep the registration current. The contrary is evident from section 20915(a), which specifies the duration of required registration under SORNA. Section 20915(a) uses the same terminology, stating that a sex offender “shall keep the registration current” for the relevant period of time. Obviously, in providing that a sex offender must “keep the registration current” for a specified period, section 20915(a) defines the period of time during which a sex offender must continue to comply with all of SORNA's requirements, given the absence of any other provision in SORNA specifying how long sex offenders must comply with its various requirements. Among other consequences, this means that sex offenders must appear in person periodically to verify and update their registration information, as required by section 20918, for the specified period of time—not just that they must report changes in name, residence, employment, and school attendance, as provided in section 20913(c), for the specified period of time. That consideration alone demonstrates that section 20913(c) does not exhaust SORNA's requirements for “keep[ing] the registration current.”

Regarding other matters, such as changes in registration information relating to remote communication identifiers, temporary lodging, vehicles, and international travel, the Attorney General has understood the authority to interpret and implement SORNA's requirement to keep the registration current as including the authority to adopt specific time and manner requirements for the reporting of such changes. Congress ratified this understanding in the KIDS Act. In that Act, Congress provided that (i) “[t]he Attorney General, using the authority provided in [34 U.S.C. 20914(a)(8)], shall require that each sex offender provide to the sex offender registry those internet identifiers the sex offender uses or will use” and (ii) “[t]he Attorney General, using the authority provided in [34 U.S.C. 20912(b)], shall specify the time and manner for keeping current information required to be provided under this section.” 34 U.S.C. 20916(a)-(b).

Notably, Congress did not find it necessary to make new grants of authority to the Attorney General for these purposes and instead directed the Attorney General to utilize the pre-existing authorities under SORNA to require internet identifier information and specify the time and manner for keeping it current. This confirms that the section 20912(b) authority includes the authority to adopt additional time and manner requirements in the rules and guidelines the Attorney General issues.

SORNA directs sex offenders to provide for inclusion in the sex offender registry several expressly described types of registration information and, in addition, “[a]ny other information required by the Attorney General.” Id. 20914(a)(8). The section 20914(a)(8) authority underlies the specification of required types of registration information in § 72.6 in this rule beyond those expressly set forth in section 20914(a)(1)-(7). The section 20914(a)(8) authority also provides an additional, independent legal basis for various requirements in § 72.7, including a number of timing rules it incorporates.

In relation to some types of required registration information under this rule, which may be based wholly or in part on the exercise of the Attorney General's authority under section 20914(a)(8), a timing requirement is inherent in the nature of the information that must be reported. This is true of the requirement under § 72.7(d) to report if a sex offender will be commencing residence, employment, or school attendance elsewhere or will be terminating residence, employment, or school attendance in a jurisdiction. It is likewise true of the requirement under § 72.7(f) to report intended international travel. Because these provisions constitute requirements to report present intentions regarding expected future actions, the information they require necessarily must be reported in advance of the expected actions.

Section 20914(a)(8) also provides an additional, independent legal basis for more specific timeframe requirements appearing in § 72.7 of this rule. One of these requirements is that intended international travel is to be reported at least 21 days in advance of the travel, as provided in § 72.7(f). In substance, this is a requirement that a sex offender report to the residence jurisdiction an intention to travel outside of the United States at some time 21 days or more in the future. Viewing the expected timing of the travel as an aspect of the required information, it is within the Attorney General's authority under 34 U.S.C. 20914(a)(8) to require sex offenders to provide “[a]ny other information”—and following the adoption of section 20914(a)(7) by International Megan's Law, within the Attorney General's more specific authority under the latter provision to require “any other . . . travel-related information.” Essentially the same point applies to the rule's specification that sex offenders must report within three business days changes relating to certain types of registration information the Attorney General has required. Section 72.7(e) directs reporting of changes in information within that timeframe relating to remote communication identifiers, temporary lodging, and vehicles. Viewed as requirements to report the information that certain actions or occurrences have taken place within the preceding three business days, these requirements are within the Attorney General's authority under 34 U.S.C. 20914(a)(8).

Turning to another SORNA provision supporting time and manner requirements, 34 U.S.C. 20913(d) authorizes the Attorney General to specify the applicability of SORNA's requirements to sex offenders convicted before the enactment of SORNA or its implementation in a particular jurisdiction “and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b).” The cross-referenced “subsection (b)” is the SORNA provision that requires sex offenders to register initially before release from imprisonment, or within three business days of sentencing if the sex offender is not imprisoned. As discussed below in connection with § 72.7(a)(2) of this rule, sex offenders released from Federal or military custody and sex offenders convicted in foreign countries generally are unable to register prior to release. The section 20913(d) authority to prescribe registration rules for sex offenders “unable to comply with subsection (b)” accordingly provides one of the legal bases for the alternative timing rules in § 72.7(a)(2), which direct registration by sex offenders in the affected classes within three business days of entering a jurisdiction following release.

The authorities described above—under 34 U.S.C. 20912(b), 20913(d), and 20914(a)(8)—provided the basis for the Attorney General's adoption of time and manner specifications for complying with SORNA's registration requirements in previously issued guidelines under SORNA. More recently, International Megan's Law added an express, general grant of authority to the Attorney General to make such specifications. The relevant provision is 34 U.S.C. 20914(c), which reads as follows: “(c) TIME AND MANNER.—A sex offender shall provide and update information required under subsection (a), including information relating to intended travel outside the United States required under paragraph (7) of that subsection, in conformity with any time and manner requirements prescribed by the Attorney General.”

The cross-referenced “subsection (a)” is SORNA's list of all the registration information that sex offenders must provide. Hence, the new section 20914(c) requires sex offenders to comply with the Attorney General's directions regarding the time and manner for providing and updating all registration information required by SORNA. In addition to empowering the Attorney General to specify the time and manner for reporting particular types of registration information, this provision enables the Attorney General to specify the time and manner for registration. This is so because registration on the part of a sex offender consists of providing required registration information to the registration jurisdiction for inclusion in the sex offender registry. Given that the Attorney General has the authority under section 20914(c) to specify the time and manner for a sex offender's provision of each required type of registration information, it follows that the Attorney General has the authority under section 20914(c) to specify the time and manner for a sex offender's provision of the required types of information collectively, which constitutes registration under SORNA.

Paragraph (a)(1) of § 72.7 tracks SORNA's general rule that a sex offender must initially register—that is, register for the first time based on a sex offense conviction—before release from imprisonment, or within three business days of sentencing in case of a non-incarcerative sentence. See 34 U.S.C. 20913(b) (initial registration by sex offenders); id. 20919(a) (complementary duties of registration officials); 73 FR at 38062-65 (related explanation in guidelines).

Paragraph (a)(2)(i) of § 72.7 addresses the situation of sex offenders who are released from Federal or military custody or sentenced for a Federal or military sex offense. There is no separate Federal registration program for such offenders. Hence, Federal authorities cannot register these offenders prior to their release from custody or near the time of sentencing. This is in contrast to the authorities of the SORNA registration jurisdictions—the states, the District of Columbia, the five principal U.S. territories, and qualifying Indian tribes—who may register their sex offenders prior to release or near sentencing as provided in 34 U.S.C. 20913(b), 20919(a). SORNA instead enacted special provisions under which Federal correctional and supervision authorities (i) are required to inform Federal (including military) offenders with sex offense convictions that they must register as required by SORNA and (ii) must notify the (non-Federal) jurisdictions in which the sex offenders will reside following release or sentencing so that these jurisdictions can integrate the sex offenders into their registration programs. See 18 U.S.C. 4042(c); Public Law 105-119, sec. 115(a)(8)(C), as amended by Public Law. 109-248, sec. 141(i) (10 U.S.C. 951 note); 73 FR at 38064; see also 18 U.S.C. 3563(a)(8); id. 3583(d) (third sentence); id. 4209(a) (second sentence) (mandatory Federal supervision condition to comply with SORNA); 34 U.S.C 20931 (requiring the Secretary of Defense to provide to the Attorney General military sex offender information for inclusion in the National Sex Offender Registry and National Sex Offender Public website).

The timing rule adopted for such situations is that sex offenders released from Federal or military custody or convicted of Federal or military sex offenses but not sentenced to imprisonment must register within three business days of entering or remaining in a jurisdiction to reside, see 73 FR at 38064, which parallels SORNA's normal timeframe for registering or updating a registration following changes of residence, see 34 U.S.C. 20913(c). Section 72.7(a)(2)(i) refers to a sex offender entering “or remaining” in a jurisdiction to reside because, for example, a Federal sex offender released from a Federal prison located in a state may remain in that state to reside, rather than relocating to some other state. In such a case, the three-business-day period for registering with the state runs from the time of the sex offender's release.

In terms of legal authority, the requirement of § 72.7(a)(2)(i) is supported by the Attorney General's authority to interpret and implement SORNA's requirement to register in the jurisdiction of residence, 34 U.S.C. 20912(b), 20913(a); the Attorney General's authority under section 20913(d) to prescribe rules for the registration of sex offenders who are unable to comply with section 20913(b)'s timing rule for initial registration; and the Attorney General's authority under section 20914(c) to adopt time and manner specifications for providing and updating registration information, which includes the authority to adopt time and manner specifications for registration as discussed above. Viewing a sex offender's being released from Federal or military custody and taking up residence in a jurisdiction as a change of residence, this requirement is also supportable as a direct application of section 20913(c).

Paragraph (a)(2)(ii) of § 72.7 addresses the situation of persons required to register on the basis of foreign sex offense convictions. Registration by the convicting state is not an available option under SORNA in such cases because foreign states are not registration jurisdictions under SORNA. See 34 U.S.C. 20911(10). Also, there may be no domestic jurisdiction in which SORNA requires such offenders to register—if they are not residing, working, or attending school in the United States at the time they are released from custody or sentenced in the foreign country—but SORNA's requirements will apply if they travel or return to the United States. The rule adopted for foreign conviction situations is that the sex offender must register within three business days of entering a domestic jurisdiction to reside, work, or attend school, see 73 FR at 38050-51, 38064-65, which parallels SORNA's normal timeframe for registering or updating a registration following changes of residence, employment, or student status, see 34 U.S.C. 20913(c).

In terms of legal authority, this requirement is supported by the Attorney General's authority to interpret and implement SORNA's requirement to register in jurisdictions of residence, employment, and school attendance, 34 U.S.C. 20912(b), 20913(a); the Attorney General's authority under section 20913(d) to prescribe rules for the registration of sex offenders who are unable to comply with section 20913(b)'s timing rule for initial registration; and the Attorney General's authority under section 20914(c) to adopt time and manner specifications for providing and updating registration information, which includes the authority to adopt time and manner specifications for registration as discussed above. Insofar as a sex offender's travel or return to the United States following a foreign conviction involves a change of residence, employment, or student status, this requirement is also supportable as a direct application of section 20913(c).

Paragraph (b) of § 72.7 sets out the express requirement of 34 U.S.C. 20918 that sex offenders periodically appear in person in the jurisdictions in which they are required to register, allow the jurisdictions to take current photographs, and verify their registration information, with the frequency of the required appearances determined by their tiering. See 73 FR at 38067-68.

The second sentence of paragraph (b), exercising the Attorney General's authority under 34 U.S.C. 20912(b), interprets and implements section 20918's requirement of verifying the information in each registry to include correcting any information that is out of date or inaccurate and reporting any new registration information. With respect to most types of registration information, other provisions of § 72.7 require reporting of changes within shorter timeframes than the intervals between periodic in-person appearances for verification. Hence, a sex offender who has complied with SORNA's requirements is likely to have reported changes in most types of registration information prior to his next verification appearance. But § 72.7 does not specially address the time and manner for reporting changes in some types of registration information. See § 72.6(a)(2)-(3), (e), (g) (requiring as well information concerning actual and purported dates of birth and Social Security numbers, passports and immigration documents, and professional licenses). Sex offenders can keep their registrations current with respect to the latter categories of information by reporting any changes in their periodic verifications. See 73 FR at 38067-68.

Paragraph (c) of § 72.7 is based on SORNA's express requirement that “[a] sex offender shall, not later than 3 business days after each change of name, residence, employment, or student status, appear in person in at least 1 jurisdiction involved pursuant to [34 U.S.C. 20913(a)] and inform that jurisdiction of all changes in the information required for that offender in the sex offender registry.” 34 U.S.C. 20913(c); see 73 FR at 38065-66.

While SORNA provides a definite timeframe for reporting these changes (within three business days), specifies a means of reporting (through in-person appearance), and requires reporting of a change in “at least 1 jurisdiction,” it does not specify the particular jurisdiction in which each kind of change— i.e., change in name, residence, employment, or school attendance—is to be reported. As discussed earlier, the Attorney General's authority under 34 U.S.C. 20912(b) to interpret and implement SORNA includes the authority to further specify the manner in which changes in registration information are to be reported where there are such gaps or ambiguities in SORNA's statutory provisions. In addition, the Attorney General now has express authority under 34 U.S.C. 20914(c) to prescribe the manner in which all required registration information is to be provided and updated. Exercising those authorities in paragraph (c) in § 72.7, the Attorney General interprets and implements the requirement of section 20913(c), and prescribes the manner in which sex offenders must provide and update information about name, residence, employment, or student status, by specifying the particular jurisdiction in which a sex offender must appear to report the changes section 20913(c) describes—in the residence jurisdiction to report a change of name or residence, in the employment jurisdiction to report a change of employment, and in the jurisdiction of school attendance to report a change in school attendance. See 73 FR at 38065.

For example, suppose that a sex offender resides in state A and commutes to work in state B. Pursuant to 34 U.S.C. 20913(a), the sex offender must register in both states—in state A as his residence state, and in state B as his employment state. Suppose that the sex offender changes his place of residence in state A and continues to work at the same place in state B. Logically, the sex offender should carry out his in-person appearance in state A to report his change of residence in state A, rather than in state B, where his contact with the latter state (employment) has not changed. Conversely, varying the example, suppose that the sex offender changes his place of employment from one employer to another in state B, but continues to reside in the same place in state A. The sex offender should carry out his in-person appearance in state B to report his change of employment in state B, rather than in state A, where his contact with the latter state (residence) has not changed.

These conclusions follow from the underlying policies of SORNA's in-person appearance requirements, which aim to provide opportunities for face to face encounters between sex offenders and persons responsible for their registrations in the local areas in which they will be present. Such encounters may help law enforcement personnel to familiarize themselves with the sex offenders in their areas, thereby facilitating the effective discharge of their protective and investigative functions in relation to those sex offenders, and helping to ensure that their responsibilities to track those offenders are taken seriously and carried out consistently. Likewise, from the perspective of sex offenders, face to face encounters with officers responsible for their monitoring in the local areas where they are present may help to impress on them that their identities, locations, and past criminal conduct are known to the authorities in those areas. Hence, there is a reduced likelihood of their avoiding detection and apprehension if they reoffend, and this may help them to resist the temptation to reoffend. See 73 FR at 38065, 38067.

These policies are furthered by sex offenders appearing in person to report changes in residence, employment, and school attendance in the jurisdictions in which the changes occur, rather than in other jurisdictions where they may be required to register, but within whose borders there has been no change in the location of the sex offender. Section 72.7(c) in the rule accordingly provides that changes in the most basic types of location information—residence, employment, school attendance—are to be reported through in-person appearances in the jurisdictions in which they occur. Section 72.7(c) also provides definiteness regarding the reporting of name changes under 34 U.S.C. 20913(c), providing that such changes are to be reported in the residence jurisdiction, as the jurisdiction in which a sex offender is likely to have his most substantial presence and contacts.

Paragraph (d) of § 72.7 requires sex offenders to inform the jurisdictions in which they reside if they will be commencing residence, employment, or school attendance in another jurisdiction or outside of the United States, and to inform the relevant jurisdictions if they will be terminating residence, employment, or school attendance in a jurisdiction. The Attorney General has previously articulated these requirements in the SORNA Guidelines. See 73 FR at 38065-67. These requirements are not part of the requirement under 34 U.S.C. 20913(c) to report certain changes through in-person appearances and they may be reported by any means allowed by registration jurisdictions in their discretion. See 73 FR at 38067.

Paragraph (d)(1) of § 72.7, relating to notice about intended commencement of residence, employment, or school attendance outside of a jurisdiction, and paragraph (d)(2), relating to notice about termination of residence, employment, or school attendance in a jurisdiction, are complementary, each applying in certain situations that may be outside the scope of the other. For example, § 72.7(d)(1) requires a sex offender to inform his residence jurisdiction if he will be starting a job in another jurisdiction, even if he will continue to reside where he has resided and will not be terminating any existing connection to the residence jurisdiction. Section 72.7(d)(2) requires a sex offender to inform a jurisdiction of his intended termination of residence, employment, or school attendance in that jurisdiction “even if there is no ascertainable or expected future place of residence, employment, or school attendance for the sex offender.” 73 FR at 38066. Regarding the underlying legal authority for § 72.7(d), its informational requirements overlap with types of information 34 U.S.C. 20914(a) expressly requires sex offenders to provide, which include information as to where a sex offender “will reside,” “will be an employee,” or “will be a student.” Id. 20914(a)(3)-(5). To the extent § 72.7(d) goes beyond the registration information that SORNA expressly requires, it is a straightforward exercise of the Attorney General's authority under 34 U.S.C. 20914(a)(8) to require any additional registration information.

Even before the enactment of International Megan's Law, the Attorney General's implementation authority under 34 U.S.C. 20912(b) was understood to include the authority to specify time and manner requirements for providing and updating registration information, as discussed above. Currently, section 20914(c) confers express authority on the Attorney General to adopt the time and manner requirements set forth in § 72.7(d)— i.e., that (i) intended commencement of residence, employment, or school attendance in another jurisdiction or outside the United States is to be reported to the residence jurisdiction (by whatever means it allows) prior to any termination of residence in that jurisdiction and prior to commencing residence, employment, or school attendance in the other jurisdiction or outside of the United States; and (ii) intended termination of residence, employment, or school attendance in a jurisdiction is to be reported to the jurisdiction (by whatever means it allows) prior to the termination of residence, employment, or school attendance in the jurisdiction. Section 72.7(d)'s requirement that the intended actions or changes are to be reported prior to the termination of residence, employment, or school attendance in the relevant jurisdiction ensures that the reporting requirement applies while the sex offender is still subject to the requirement to register and keep the registration current in the jurisdiction pursuant to 34 U.S.C. 20913(a). This approach avoids any question about the validity of requiring a sex offender to provide or update information in a jurisdiction in which he is no longer required to register under SORNA.

The exercise of the authorities described above in § 72.7(d) furthers SORNA's objective of creating a “comprehensive national system for the registration of [sex] offenders,” 34 U.S.C. 20901, which reliably tracks sex offenders as they move away from and into registration jurisdictions. A sex offender's departure from a jurisdiction in which he is registered may eventually be discovered— e.g., because he fails to appear for the next periodic verification of his registration, see id. 20918—even if he does not affirmatively notify the jurisdiction that he is leaving. But considerable time may elapse before that happens, leaving a cold trail for law enforcement efforts to locate the sex offender, if he does not register in the destination jurisdiction as SORNA requires.

For example, for a sex offender who decides to change his residence from one state to another, § 72.7(d) requires the sex offender to inform the state he is leaving prior to his departure, and § 72.7(c) requires him to inform the destination state within three business days of his arrival there. Under SORNA's procedures for information sharing among registration jurisdictions, the state of origin in such a case directly notifies the identified destination state. See 34 U.S.C. 20921(b), 20923(b)(3); 73 FR at 38065; 76 FR at 1638. If the sex offender then fails to appear and register as expected in the destination state, appropriate follow-up ensues, which may include investigative efforts by state and local law enforcement and the U.S. Marshals Service to locate the sex offender, issuance of a warrant for his arrest, and entry of information into national law enforcement databases reflecting the sex offender's status as an absconder or unlocatable. See 34 U.S.C. 20924; 73 FR at 38069. In the context of this system, the requirement of § 72.7(d) for a sex offender to notify the residence jurisdiction concerning his departure is an important element. It helps to ensure that agencies and officials responsible for sex offender registration and its enforcement are promptly made aware of major changes in the location of sex offenders, and thereby reduces the risk that sex offenders will disappear in the interstices between jurisdictions.

In so doing, § 72.7(d) resolves certain potential problems in the operation of SORNA's registration system following the Supreme Court's decision in Nichols v. United States, 136 S Ct. 1113 (2016), and a similar earlier decision by the Eighth Circuit Court of Appeals, United States v. Lunsford, 725 F.3d 859 (8th Cir. 2013). Nichols involved a sex offender who abandoned his residence in Kansas and relocated to the Philippines, without informing the Kansas registration authorities of his departure. The issue in the case was whether Nichols had violated 34 U.S.C. 20913(c), which requires a sex offender “not later than three business days after each change of name, residence, employment, or student status” to “appear in person in at least 1 jurisdiction involved pursuant to subsection (a) and inform that jurisdiction of all changes” in the required registration information.

The Court noted that subsection (a) of section 20913 mentions three jurisdictions as possibly “involved”—“where the offender resides, where the offender is an employee, and where the offender is a student”— which would not include the state of Kansas after Nichols had moved to the Philippines. Nichols , 136 S Ct. at 1117 (quoting 34 U.S.C. 20913(a)). The Court further noted that section 20913(c) requires appearance and registration within three business days after a change of residence, and Nichols could not have appeared in Kansas after he left the state. Id. at 1117-18. The Court accordingly concluded that Nichols' failure to inform Kansas of his departure was not a violation of section 20913(c), since Kansas was no longer an “involved” jurisdiction in which section 20913(c) may require a sex offender to report changes in residence. Id. at 1118. Applying the same reasoning to the domestic context, if a sex offender terminates his residence in a state and thereafter takes up residence in another state, he cannot violate section 20913(c) by failing to inform the state he is leaving. For, following the termination of residence in that state, it is no longer a “jurisdiction involved” for purposes of section 20913(c).

There is no comparable problem, however, with § 72.7(d)'s requirement that a sex offender inform a jurisdiction in which he resides of his intended departure from the jurisdiction, because § 72.7(d) does not depend on the requirements of section 20913(c). Rather, § 72.7(d) is grounded in the requirement of section 20914(a) that sex offenders provide certain information, including “[a]ny other information required by the Attorney General,” and the requirement of section 20914(c) that they report the required information in the “time and manner . . . prescribed by the Attorney General.”

The Attorney General's exercise of his authorities under section 20914(a) and 20914(c) to require sex offenders to inform their registration jurisdictions that they will be going elsewhere in no way conflicts with Nichols' conclusion that section 20913(c) does not require such pre-departure notice of intended relocation. Section 20914(a)(8) says that sex offenders must provide “[a]ny other information required by the Attorney General.” The statute does not say that sex offenders must provide “[a]ny other information required by the Attorney General, except for information about intended departure from the jurisdiction .” Nichols' interpretation of section 20913(c) provides no basis for reading such an unstated limitation into section 20914(a)(8). Likewise, Nichols provides no basis for reading unstated limitations into the Attorney General's authority—now expressly granted by section 20914(c)—to prescribe time and manner requirements for providing and updating registration information, which adequately supports § 72.7(d)'s requirement that a sex offender inform the jurisdiction in which he resides about intended departure prior to any termination of residence and before going elsewhere.

The Attorney General's adoption of the § 72.7(d) requirements is also consistent with the Supreme Court's analysis of particular arguments and issues in Nichols. The salient points are as follows:

First, the Court in Nichols noted that the predecessor Federal sex offender registration law (the “Wetterling Act”) required a sex offender to “report the change of address to the responsible agency in the State the person is leaving,” while SORNA contains no comparable provision that expressly requires sex offenders to notify jurisdictions they are leaving. 136 S Ct. at 1118 (quoting 42 U.S.C. 14071(b)(5) (2000)). However, SORNA does not attempt to articulate all the particulars of its registration requirements for sex offenders, instead authorizing the Attorney General to complete the regulatory scheme through interpretation and implementation of SORNA. See, e.g., 34 U.S.C. 20912(b), 20913(d), 20914(a)(8), 20914(c). Given the extent of the Attorney General's powers under SORNA, it was not necessary for Congress to include an express provision in SORNA requiring sex offenders to notify jurisdictions they are leaving. Nor can there be any doubt that requiring such notification is now within the terms of the Attorney General's powers under SORNA, as discussed above. Indeed, 34 U.S.C. 20923(b)(3)—which provides that a jurisdiction's officials are to inform each jurisdiction “from or to which a change of residence, employment, or student status occurs”— contemplates the Attorney General's adoption of requirements like those appearing in § 72.7(d). For if sex offenders were not required to advise the jurisdictions they leave of their departure and destination, those jurisdictions could not inform the jurisdictions “to which” sex offenders relocate.

Second, the Court in Nichols rejected an argument that a jurisdiction necessarily remains “involved” for purposes of section 20913(c) if the sex offender continues to appear on the jurisdiction's registry as a current resident. The Court responded that section 20913(a) gives jurisdictions where the offender resides, is an employee, or is a student as the only possibilities for an “involved” jurisdiction, and does not include a jurisdiction “where the offender appears on a registry.” 136 S Ct. at 1118. The Court said “[w]e decline the . . . invitation to add an extra clause to the text of § [20]913(a).” Id. In contrast, § 72.7(d) in this rule does not require the addition of an extra clause to section 20913(a). It involves the exercise of the Attorney General's authorities under SORNA to include the information described in § 72.7(d) in the information that a sex offender must provide to the jurisdictions described in the actual clauses of section 20913(a)— i.e., those in which he resides, is an employee, or is a student.

Third, the Court rejected an argument that Nichols was required to inform Kansas of his intended departure based on 34 U.S.C. 20914(a)(3)'s direction to sex offenders to provide information about where they “will reside.” The Court noted that “§ [20]914(a) merely lists the pieces of information that a sex offender must provide if and when he updates his registration; it says nothing about whether the offender has an obligation to update his registration in the first place.” 136 S Ct. at 1118. In context, the Court's point was that section 20914(a)(3) just specifies a type of information sex offenders must provide, and does not say when they must provide it, so section 20914(a)(3) does not in itself require sex offenders to provide change of residence information in advance when they leave a jurisdiction. For example, without more, section 20914(a)(3) might be taken to entail that sex offenders must advise where they “will reside” when initially registering before release from imprisonment, see 34 U.S.C. 20913(b)(1), but not necessarily that they give advance notice to their registration jurisdictions of expected future residence on subsequent relocations.

However, this understanding of section 20914(a)(3) does not imply any limitation on the Attorney General's authority to require a sex offender to “update his registration in the first place,” Nichols , 136 S Ct. at 1118, on the basis of 34 U.S.C. 20914(c), which directs that “[a] sex offender shall provide and update information required under subsection (a) . . . in conformity with any time and manner requirements prescribed by the Attorney General.” Nor does it imply any limitation on the Attorney General's authority under SORNA to require sex offenders to report the full range of information described in § 72.7(d). In § 72.7(d), as discussed above, the Attorney General exercises these authorities to require sex offenders to inform jurisdictions of intended departure and expected future residence prior to any termination of residence in a jurisdiction.

Finally, the Court in Nichols rejected an argument that Nichols had to notify Kansas of his departure on the theory that he engaged in two changes of residence—the first when he abandoned his residence in Kansas, and the second when he checked into a hotel in the Philippines. 136 S Ct. at 1118-19. Section 72.7(d) in this rule, however, does not assume any such multiplicity in changes of residence. Rather, it establishes a freestanding requirement to inform registration jurisdictions in advance of termination of residence and commencement of intended future residence.

At the end of the Nichols decision, the Court noted that—considering the International Megan's Law amendments to SORNA—“[o]ur interpretation of the SORNA provisions at issue in this case in no way means that sex offenders will be able to escape punishment for leaving the United States without notifying the jurisdictions in which they lived while in this country.” 136 S. Ct. at 1119. The Court noted the addition of a new subsection (b) to 18 U.S.C. 2250, which “criminalized the `knowin[g] fail[ure] to provide information required by [SORNA] relating to intended travel in foreign commerce,' ” and the addition of 34 U.S.C. 20914(a)(7), which requires sex offenders to provide information about intended international travel. 136 S. Ct. at 1119 (brackets in original) (quoting 18 U.S.C. 2250(b)(2)). The Court concluded: “We are thus reassured that our holding today is not likely to create `loopholes and deficiencies' in SORNA's nationwide sex-offender registration scheme.” Id. (quoting United States v. Kebodeaux, 570 U.S. 387, 399 (2013)).

Section 72.7(d) in this rule similarly helps to ensure that the interpretation of 34 U.S.C. 20913(c) in Nichols and Lunsford does not create “loopholes and deficiencies” in the operation of SORNA's tracking system, in relation to both domestic and international relocations. For example, consider a sex offender who terminates his residence in a state without informing the state. Suppose the sex offender is later found elsewhere in the United States, but he cannot be shown to have taken up residence—or to have been employed or a student—in another jurisdiction after leaving the original state of residence. In light of Nichols, section 20913(c) does not require the sex offender to report his relocation to the original state because it is no longer an “involved” jurisdiction after he leaves, and there may be no other relevant jurisdiction in which he must report the change, i.e., one in which he presently resides, is employed, or is a student. However, with § 72.7(d) in effect, a sex offender in this circumstance will have violated 34 U.S.C. 20914(a) and (c)'s requirements to provide registration information, including “[a]ny other information” prescribed by the Attorney General, in the time and manner prescribed by the Attorney General. At a minimum, in the case described, the sex offender would have failed to provide the information that he is terminating his residence in the original state of residence prior to his termination of residence in that state, contravening § 72.7(d).

Hence, § 72.7(d) provides an additional safeguard against registered sex offenders' simply disappearing without informing anyone about their relocation. The consequences for non-compliant sex offenders include potential prosecution by registration jurisdictions, which have been encouraged to adopt departure notification requirements similar to § 72.7(d) in their registration laws by the Attorney General's prior articulation of those requirements in the SORNA Guidelines. S ee 73 FR at 38065-66. The consequences of noncompliance with § 72.7(d) will also include potential Federal prosecution under 18 U.S.C. 2250 for violations committed under circumstances supporting Federal jurisdiction.

Sex offenders must comply both with the requirements of § 72.7(c) and with the requirements of § 72.7(d). For example, suppose a sex offender changes residence from state A to state B. It is not sufficient if (i) the sex offender complies with § 72.7(d) by telling state A that he is leaving and going to state B, but (ii) he fails to appear in state B and register there as required by § 72.7(c), and then (iii) he attempts to excuse his failure to comply with § 72.7(c) on the ground that state A could have told state B about his relocation. Likewise, it is not sufficient if the sex offender in such a case (i) complies with § 72.7(c) by registering in state B, but (ii) he fails to inform state A about the intended relocation prior to his departure, and then (iii) he attempts to excuse his failure to comply with § 72.7(d) on the ground that state B could have told state A about his relocation. As discussed above, appearance and registration by sex offenders in jurisdictions in which they commence residence, employment, or school attendance, as required by § 72.7(c), and notification by sex offenders to jurisdictions in which they terminate residence, employment, or school attendance, as required by § 72.7(d), both serve important purposes in SORNA's registration system as articulated in this rule and the previously issued SORNA guidelines. Compliance with both requirements is necessary to the seamless and effective operation of that system for the reasons explained above.

Paragraph (e) requires sex offenders to report to their residence jurisdictions within three business days changes in remote communication identifier information, temporary lodging information, and vehicle information. In terms of legal authority, as discussed earlier, these requirements are supportable on the basis of the Attorney General's authority to interpret and implement SORNA's requirement to keep the registration current, the Attorney General's authority to expand the information that sex offenders must provide to registration jurisdictions, and the Attorney General's authority to prescribe the time and manner for providing and updating registration information. See 34 U.S.C. 20912(b), 20913(a), 20914(a)(8), (c), 20916(b); 73 FR at 38066; 76 FR at 1637. (The SORNA Guidelines state that such changes are to be reported “immediately” and explain at an earlier point that “immediately” in the context of SORNA's timing requirements means within three business days, see 73 FR at 38060, 38066.) SORNA does not require that these changes be reported through in-person appearances and they may be reported by any means allowed by registration jurisdictions in their discretion. See id. at 38067.

Paragraph (f) of § 72.7 requires sex offenders to report intended travel outside of the United States to their residence jurisdictions. The expected travel must be reported at least 21 days in advance and, if applicable, prior to any termination of residence in the jurisdiction. Reporting of information about intended international travel is an express SORNA requirement following SORNA's amendment by International Megan's Law. S ee 34 U.S.C. 20914(a)(7); Public Law 114-119, sec. 6(a). The underlying reasons for requiring reporting of international travel are explained above in connection with § 72.6(d) of this rule.

The 21-day advance notice requirement is designed to provide relevant agencies, including the U.S. Marshals Service and INTERPOL Washington-U.S. National Central Bureau, sufficient lead time for any investigation or inquiry that may be warranted relating to the sex offender's international travel, and for notification of U.S. and foreign authorities in destination countries, prior to the sex offender's arrival in a destination country. The requirement that the intended international travel be reported prior to any termination of residence in the jurisdiction—potentially an issue in cases in which the sex offender is terminating his U.S. residence and relocating to a foreign country—ensures that a SORNA violation has occurred in case of noncompliance while the sex offender is still residing in the jurisdiction and hence required by 34 U.S.C. 20913(a) to register and keep the registration current in that jurisdiction. The requirement to report intended international travel at least 21 days in advance applies in relation to all international travel, including both cases in which the sex offender is temporarily traveling abroad while maintaining a domestic residence and cases in which the sex offender is terminating his residence in the particular jurisdiction or the United States.

The rule recognizes, however, that reporting of intended international travel 21 days in advance is not possible in some circumstances. Section 72.8(a)(2) of the rule generally addresses situations in which sex offenders cannot comply with SORNA requirements because of circumstances beyond their control, and it specifically addresses inability to comply with the timeframe for reporting of international travel in Example 3 in that provision.

In terms of legal authority, the requirement to report intended international travel to the residence jurisdiction at least 21 days in advance and prior to any termination of residence is supportable as an exercise of the express authority of the Attorney General under 34 U.S.C. 20914(c), which states in part that “[a] sex offender shall provide and update . . . information relating to intended travel outside the United States . . . in conformity with any time and manner requirements prescribed by the Attorney General.” As discussed above, the international travel reporting requirement, including its associated timeframe requirement, is also supportable on the basis of other SORNA authorities of the Attorney General, which were relied on in SORNA guidelines preceding the addition of 34 U.S.C. 20914(a)(7), (c) by International Megan's Law. These authorities include the Attorney General's authority under 34 U.S.C. 20914(a)(8) to expand the range of required registration information and the Attorney General's authority under 34 U.S.C. 20912(b) to issue rules to interpret and implement SORNA's requirement to keep the registration current.

Paragraph (g) of § 72.7 requires sex offenders to register and keep the registration current in conformity with the time and manner requirements of their registration jurisdictions, where they have not done so in the time and manner normally required under SORNA.

SORNA generally requires sex offenders to register initially before release from imprisonment or within three business days of sentencing, but it recognizes that sex offenders may be unable to comply with these requirements in some circumstances. The difficulty can arise in cases in which a jurisdiction has no provision for registering certain sex offenders as required by SORNA at the time of their release—or even no registration program at all at that time—but the jurisdiction can register them later as it progresses in its implementation of SORNA's requirements. The SORNA Guidelines provide guidance to registration jurisdictions about integrating previously excluded sex offenders into their registration programs in such circumstances and ensuring that these sex offenders fully comply with SORNA's requirements. See 73 FR at 38063-64; see also Smith, 538 U.S. 84 (application of new sex offender registration requirements to previously convicted sex offenders does not violate the constitutional prohibition on ex post facto laws).

Because the normal timeframe for initial registration under SORNA may be past in these situations, SORNA authorizes the Attorney General to prescribe rules for registration. Specifically, 34 U.S.C. 20913(d) gives the Attorney General the authority to specify the applicability of SORNA's requirements to sex offenders with pre-SORNA or pre-SORNA-implementation convictions, “and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with” SORNA's initial registration requirements. More broadly, as discussed above, the Attorney General's general authority under 34 U.S.C. 20912(b) to interpret and implement SORNA includes the authority to fill gaps in SORNA's time and manner requirements for registering and keeping the registration current, and 34 U.S.C. 20914(c) expressly requires sex offenders to provide and update registration information required by SORNA in the time and manner prescribed by the Attorney General.

In section 72.7(g) in this rule, the Attorney General proposes to exercise his authorities under 34 U.S.C. 20912(b), 20913(d), and 20914(c) to require sex offenders to register and keep their registrations current in the time and manner specified by their registration jurisdictions, where the sex offenders have not registered or kept the registrations up to date in the time and manner normally required by SORNA as articulated in the earlier portions of § 72.7. This proposal complements the directions to registration jurisdictions in the SORNA Guidelines about integrating previously excluded sex offenders and previously omitted SORNA requirements into their registration programs, with suitable timeframes and procedures, as the jurisdictions progress with SORNA implementation. See 73 FR at 38063-64. Of course sex offenders are independently required by the laws of their registration jurisdictions to comply with the jurisdictions' time and manner specifications for registering and updating their registrations. The effect of § 72.7(g) is to adopt the jurisdictions' time and manner specifications as SORNA requirements in the situations it covers.

Section 72.7(g)(1) includes four examples. The first example concerns a situation in which a state does not register sex offenders before release, but a sex offender can register soon after release in conformity with the state's procedures. The second example concerns a situation in which a jurisdiction does not register certain sex offenders at all at the time of their release or entry into the jurisdiction, but a sex offender in the excluded class becomes able to register at a later time and is directed by the jurisdiction to do so after it extends its registration requirements.

As the Supreme Court noted in Reynolds, SORNA, in section 20913(b), “says that a sex offender must register before completing his prison term, but the provision says nothing about when a pre-Act offender who completed his prison term pre-Act must register. . . . Pre-Act offenders . . . might, on their own, reach different conclusions about whether, or how, the new registration requirements applied to them. A ruling from the Attorney General [under section 20913(d)], however, could diminish or eliminate those uncertainties . . . .” 565 U.S. at 441-42. In § 72.7(g), the Attorney General exercises his authorities under sections 20912(b), 20913(d), and 20914(c) to “eliminate those uncertainties” in conformity with Congress's intent concerning the filling of “potential lacunae” in SORNA, 565 U.S. at 441-42. Section 72.7(g) fills the gaps in such cases by adopting the timing rules and procedures of the relevant registration jurisdictions. This applies in relation to sex offenders who do not register initially in conformity with SORNA because they were convicted and released before SORNA's enactment, as described by the Court in Reynolds, and in relation to all other sex offenders who do not register in accordance with the normal time and manner requirements under SORNA, e.g., because of shortfalls in a jurisdictions' registration requirements that may later be corrected or that allow registration in some variant way.

The third example in § 72.7(g)(1) concerns a sex offender in a jurisdiction that initially does not provide for sex offenders' periodically updating registrations through verification appearances as required by SORNA, but the jurisdiction later directs the sex offender to do so after it incorporates this aspect of SORNA into its registration program. Since the periodic verification appearances required by 34 U.S.C. 20918 fall under SORNA's requirement to keep the registration current and involve updating the registration information required by SORNA, it is within the Attorney General's authority under 34 U.S.C. 20912(b) and 20914(c) to specify the time and manner for the verifications where SORNA's verification requirement or normal timeframes for verifications have not been followed. Section 72.7(g)(1) directs sex offenders to comply with the jurisdiction's requirements for periodic verification in such situations.

The fourth example in § 72.7(g)(1) concerns a sex offender who does not provide particular information within the time required by SORNA because a jurisdiction's informational requirements fall short of SORNA's requirements but are later brought into line. The example illustrates the point by reference to email addresses. As provided in § 72.6(b), sex offenders must include this information when they register and, as provided in § 72.7(e), they must report any subsequent changes within three business days. Where the normal reporting time is past when a jurisdiction decides to include a type of information in its sex offender registry, § 72.7(g)(1) requires sex offenders to comply with the jurisdiction's directions to provide the information at a later time.

Section 72.7(g)(2) provides that, in a prosecution under 18 U.S.C. 2250, § 72.7(g)(1) does not relieve a sex offender of the need to show an inability to comply with SORNA as an affirmative defense to liability. The situations described in § 72.7(g)(1), which may involve noncompliance with SORNA's requirements because of deficits in registration jurisdictions' requirements or procedures, overlap with situations in which a sex offender may have a defense under 18 U.S.C. 2250(c) because he was prevented from complying with SORNA by circumstances beyond his control. However, the purpose and effect of § 72.7(g)(1) are to hold sex offenders to compliance with the registration rules and procedures of registration jurisdictions in the situations it covers. Section 72.7(g) does not, in any case, relieve sex offenders of the obligation to comply fully with SORNA if able to do so or shift the burden of proof to the government to establish that a registration jurisdiction's procedures would have allowed a sex offender to register or keep the registration current in conformity with SORNA. Rather, the defense under 18 U.S.C. 2250(c) is an affirmative defense, as that provision explicitly provides, and as §§ 72.7(g)(2) and 72.8(a)(2) in this rule reiterate.

Section 72.8 of the rule explains the liability of sex offenders for SORNA violations and limitations on that potential liability.

SORNA's criminal provision, 18 U.S.C. 2250, provides criminal liability for sex offenders based on SORNA violations.

Section 72.8(a)(1)(i) in the rule refers to potential criminal liability under 18 U.S.C. 2250(a). Section 2250(a) authorizes imprisonment for up to 10 years based on a knowing failure to register or update a registration as required by SORNA. Federal criminal liability may result under this provision when the violation occurs under circumstances supporting Federal jurisdiction as specified in the statute. These jurisdictional circumstances include (i) violation of SORNA by sex offenders convicted of sex offenses under Federal (including military) law, the law of the District of Columbia, Indian tribal law, or the law of a U.S. territory or possession; or (ii) travel in interstate or foreign commerce or entering, leaving, or residing in Indian country. Section 2250(a) reaches all types of SORNA violations, including failure to register or keep the registration current in each jurisdiction of residence, employment, or school attendance, as required by 34 U.S.C. 20913; failure to provide or update registration information required by 34 U.S.C. 20914; or failure to appear periodically and verify the registration information, as required by 34 U.S.C. 20918.

Section 72.8(a)(1)(ii) in the rule refers to potential criminal liability under 18 U.S.C. 2250(b), which was added by International Megan's Law. See Public Law 114-119, sec. 6(b). Section 2250(b) defines an offense that specifically reaches violations of SORNA's international travel reporting requirement. The provision authorizes imprisonment for up to 10 years for a sex offender who (i) knowingly fails to provide information required by SORNA relating to intended travel in foreign commerce and (ii) “engages or attempts to engage in the intended travel in foreign commerce.” The jurisdictional language in section 2250(b) reaches cases in which the contemplated travel is not carried out, in addition to those in which the sex offender does travel abroad. For example, consider a sex offender who (i) purchases a plane ticket to a foreign destination but (ii) fails to report the intended international travel as required by SORNA and (iii) does not actually leave the country because the unreported travel is detected by the authorities who arrest him at the airport. The attempted travel in foreign commerce provides a sufficient jurisdictional basis for Federal prosecution under section 2250(b).

Section 72.8(a)(1)(iii) in the rule explains the condition for liability under 18 U.S.C. 2250(a)-(b) that the defendant “knowingly” fail to comply with a SORNA requirement. The “knowingly” limitation ensures that sex offenders are not held liable under section 2250 for violations of registration requirements they did not know about. However, this does not require knowledge that the requirement is imposed by SORNA. State sex offenders, for example, are likely to be instructed in the registration process regarding many of the registration requirements appearing in SORNA, which are widely paralleled in state registration laws, such as the need to report changes in residence, employment, internet identifiers, and vehicle information; the need to report intended international travel; and the need to appear periodically to update and verify registration information. The acknowledgment forms obtained from sex offenders in registration often provide a means of establishing their knowledge of the registration requirements in later prosecutions for violations. See 76 FR at 1634-35, 1638. But sex offenders may not be informed that the registration requirements they are subject to are imposed by a particular Federal law, SORNA. This does not impugn the fairness or propriety of holding sex offenders liable under 18 U.S.C. 2250 for knowingly violating a registration requirement that is in fact imposed by SORNA, so long as they are aware of an obligation from some source to comply with the requirement. See, e.g., United States v. Elkins, 683 F.3d 1039, 1050 (9th Cir. 2012); United States v. Whaley, 577 F.3d 254, 261-62 (5th Cir. 2009). Section 72.8(a)(1)(iii) makes these points about 18 U.S.C. 2250's knowledge requirement in the rule.

Subsection (c) of 18 U.S.C. 2250 provides an affirmative defense to liability under certain conditions where uncontrollable circumstances prevented a sex offender from complying with SORNA, so long as the sex offender complied as soon as the preventing circumstances ceased. Section 72.8(a)(2) in the rule reproduces this affirmative defense provision and provides examples of its operation.

Registration is a reciprocal process, involving the provision of registration information by sex offenders, and the registration jurisdiction's acceptance of the information for inclusion in the sex offender registry. The circumstances preventing compliance with SORNA under section 2250(c) accordingly may be a registration jurisdiction's failure or refusal to carry out the reciprocal role needed to effect registration, or the updating of a registration, as required by SORNA.

Example 1 in § 72.8(a)(2) illustrates this type of situation, describing a case in which a sex offender cannot appear and report an inter-jurisdictional change of residence within three business days because the office with which he needs to register will not meet with him for a week. The case implicates both 34 U.S.C. 20913(a)'s requirement that a sex offender register in each jurisdiction in which he resides and 34 U.S.C. 20913(c)'s requirement that sex offenders report changes of residence within three business days. These provisions' net effect is that a sex offender establishing residence in a new jurisdiction must register there but with a three-business-days grace period. In the case described, 18 U.S.C. 2250(c) would excuse the failure to report within the three-business-day timeframe. However, the inability to meet section 20913(c)'s specific timeframe does not obviate the need to comply with section 20913(a)'s requirement to register in each state of residence. Nothing prevents the sex offender from complying with this registration requirement once the office is willing to meet with him, so he will need to appear and carry out the registration at the appointed time in order to have the benefit of the 18 U.S.C. 2250(c) defense.

Example 2 in § 72.8(a)(2) also illustrates a situation in which the circumstance preventing compliance with SORNA is a failure by the registration jurisdiction to carry out a necessary reciprocal role. The specific situation described in the example is a state's refusal to register sex offenders based on the offense for which the sex offender was convicted. For example, SORNA requires registration based on conviction for child pornography possession offenses, see 34 U.S.C. 20911(7)(G), but some states that have not fully implemented SORNA's requirements in their registration programs may be unwilling to register a sex offender on the basis of such an offense. Section 2250(c)'s excuse of the failure to register terminates if the state subsequently becomes willing to register the sex offender, because the circumstance preventing compliance with SORNA no longer exists. However, liability based on a continuing failure by the sex offender to comply with SORNA in such a case—following a change in state policy or practice allowing compliance—depends on the sex offender's becoming aware of the change since, as discussed above, 18 U.S.C. 2250 does not impose liability for violation of unknown registration obligations. Cf. 73 FR at 38063-64 (direction to registration jurisdictions to instruct sex offenders about new or additional registration duties in connection with SORNA implementation).

Example 3 in § 72.8(a)(2) describes a situation in which the circumstance preventing compliance with SORNA relates to the situation of the sex offender rather than the registration jurisdiction. The second sentence of § 72.7(f) in the rule requires in part that a sex offender report intended international travel 21 days in advance, which he cannot do if he does not anticipate a trip abroad that far in advance. In such a case, as described in the example, 18 U.S.C. 2250(c) would excuse a sex offender's failure to report the travel 21 days in advance. Cf. 76 FR at 1638 (“[R]equiring 21 days advance notice may occasionally be unnecessary or inappropriate. For example, a sex offender may need to travel abroad unexpectedly because of a family or work emergency.”). However, inability to comply with the 21-day timeframe in a particular case does not prevent a sex offender from otherwise complying with SORNA's requirements to inform the residence jurisdiction about intended international travel, appearing in 34 U.S.C. 20914(a)(7) and in §§ 72.6(d) and 72.7(f) in this rule. Hence, once the intention to travel exists, the sex offender must inform the registration jurisdiction to avoid liability under 18 U.S.C. 2250.

Section 72.8(b) recounts that, for sex offenders convicted of Federal offenses, compliance with SORNA is a mandatory condition of probation and supervised release. See 18 U.S.C. 3563(a)(8), 3583(d) (third sentence). Violation of this condition may result in revocation of release. See 18 U.S.C. 3565(a)(2), 3583(e)(3). Section 72.8(b) also notes that compliance with SORNA is a mandatory condition of parole for sex offenders convicted of Federal offenses, see 18 U.S.C. 4209(a) (second sentence), a requirement of narrow application given the abolition of parole in Federal cases, except for offenses committed before November 1, 1987.

The Attorney General, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it certifies that this regulation will not have a significant economic impact on a substantial number of small entities for the purposes of that Act because the regulation only articulates SORNA's registration requirements for sex offenders.

This regulation has been drafted and reviewed in accordance with Executive Order 12866, “Regulatory Planning and Review,” section 1(b), Principles of Regulation, and Executive Order 13563, “Improving Regulation and Regulatory Review.” The regulation expands part 72 of title 28 of the Code of Federal Regulations to provide a concise and comprehensive statement of what sex offenders must do to comply with SORNA's requirements, following express requirements appearing in SORNA and previous exercises of authority SORNA grants to the Attorney General to interpret and implement SORNA. The justification of these requirements as means of furthering SORNA's objectives is explained in the preamble to this regulation and in previous SORNA-related documents, including the rulemaking entitled “Applicability of the Sex Offender Registration and Notification Act,” 75 FR 81849 (final rule), 72 FR 8894 (interim rule); the SORNA Guidelines, 73 FR 38030; and the SORNA Supplemental Guidelines, 76 FR 1630. The Department of Justice has determined that this rule is a “significant regulatory action” under Executive Order 12866, section 3(f), and accordingly this rule has been reviewed by the Office of Management and Budget.

The Department of Justice expects that the proposed rule will not entail new costs and will result in a number of benefits. For registration jurisdictions, there are no new costs because their requirements under SORNA continue to be those articulated in the previously issued SORNA guidelines. Likewise, for sex offenders, the requirements articulated in the rule either appear expressly in SORNA or have previously been articulated by the Attorney General in the SORNA guidelines. The procedures by which sex offenders register will continue to depend on the registration processes of the jurisdictions that register them, which will not be made more time-consuming or expensive or otherwise changed by this rule.

In terms of benefits, the rule will provide in one place a clear, concise, and comprehensive statement of sex offenders' registration requirements under SORNA. This will reduce any expenditure by sex offenders of time or money required for inquiry with state or Federal authorities or others to resolve uncertainties, or required in attempting to comply with perceived registration requirements under SORNA that go beyond the requirements the Attorney General has actually specified. The clarity provided by this rule will make it easier for sex offenders to determine what SORNA requires them to do and thereby facilitate compliance with SORNA.

There are also expected benefits for the government. As the preamble explains, the rule's comprehensive articulation of SORNA's registration requirements in regulations addressed to sex offenders will provide a secure basis for Federal prosecution of knowing violations of any of SORNA's requirements. It will resolve specific problems that have arisen in past litigation or can be expected to arise in future litigation if not clarified and resolved by this rule, thereby avoiding the expenditure of litigation resources on these matters.

As explained in the existing SORNA guidelines, SORNA aims to prevent the commission of sex offenses, and to bring the perpetrators of such offenses to justice more speedily and reliably, by enabling the authorities to better identify, track, and monitor released sex offenders and by informing the public regarding the presence of released sex offenders in the community. See 73 FR at 38044-45. Hence, by facilitating the enforcement of, and compliance with, SORNA's registration requirements, and enhancing the basis for public notification, the rule is expected to further SORNA's public safety objectives and reduce the time and resources required in achieving these objectives.

While the proposed rule is expected to result in cost reductions, as discussed above, additional information would be helpful in determining the extent of these savings. We accordingly seek comment on the extent to which this rule will result in reductions in time, expense, or other costs.

This regulation will not have substantial direct effects on the states, on the relationship between the national Government and the states, or on the distribution of power and responsibilities among the various levels of government. There has been substantial consultation with state officials regarding the interpretation and implementation of SORNA. The previously issued SORNA Guidelines and SORNA Supplemental Guidelines articulate the requirements for implementation of the SORNA standards by states and other jurisdictions in their sex offender registration and notification programs, requirements that are not changed by this regulation's provision of a separate statement of the registration obligations of sex offenders under SORNA. Therefore, in accordance with Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism assessment.

This regulation meets the applicable standards set forth in section 3(a) and 3(b)(2) of Executive Order 12988.

This rule will not result in the expenditure by state, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. This rule adds provisions to part 72 of title 28 of the Code of Federal Regulations that articulate SORNA's registration requirements for sex offenders, including where, when, and how long sex offenders must register, what information they must provide, and how they must keep their registrations current. The Attorney General has previously addressed these matters and has resolved them in the same way in the SORNA Guidelines, appearing at 73 FR 38030, and in the SORNA Supplemental Guidelines, appearing at 76 FR 1630. Those previously issued sets of guidelines determine what state, local, and tribal jurisdictions must do to achieve substantial implementation of the SORNA standards in their registration programs. Reiteration of some of these requirements in a concise set of directions to sex offenders in this rule will not change what jurisdictions need to do to implement SORNA or affect their costs in doing so.

This rule is not a “major rule” as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996. 5 U.S.C. 804(2). This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, or innovation, or on the ability of U.S.-based enterprises to compete with foreign-based enterprises in domestic and export markets.

The penaeid shrimp fishery of the South Atlantic is managed under the FMP. The FMP was prepared by the Council and implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

Amendment 9 to the Shrimp FMP revised the criteria and procedures by which a South Atlantic state may request that NMFS implement a concurrent closure to the harvest of penaeid shrimp (brown, pink, and white shrimp) in the exclusive economic zone (EEZ) when state waters close as a result of severe winter weather (78 FR 35571; June 13, 2013). The Shrimp FMP provides that if a state has determined there is at least an 80-percent reduction in the population of overwintering white shrimp, or that state water temperatures were 9 °C (48 °F) or less for at least 7 consecutive days, the state can request NMFS to close the EEZ adjacent to that state's closed waters to the harvest of penaeid shrimp to protect the white shrimp spawning stock that has been severely depleted by cold weather.

The Shrimp FMP procedures allow a state, after determining that the concurrent closure criteria have been met, to submit a letter directly to the NMFS Regional Administrator (RA) with the request and supporting data for a concurrent closure of penaeid shrimp harvest in the EEZ adjacent to the closed state waters. After a review of the request and supporting information, if the RA determines the recommended closure is in accordance with the procedures and criteria specified in the FMP and the Magnuson-Stevens Act, NMFS would implement the closure through a notification in the Federal Register . The closure will usually remain effective until the ending date of the state's closure, but may be ended earlier based upon a request from the state.

Currently, shrimp trawl vessels transiting these EEZ cold weather closed areas with penaeid shrimp on board are required to stow a trawl net with a mesh size of less than 4 inches (10.2 cm) below deck. Since the most recent cold weather EEZ closures off South Carolina (83 FR 2931; January 22, 2018) and Georgia (83 FR 3404; January 25, 2018), fishermen requested that the Council update these transit provisions. Fishermen requested this change to increase their ability to transit the closed areas, as more recent vessel design changes have limited access to below deck storage. Also, requirements for a larger turtle excluder device (TED) in the trawl net to protect leatherback sea turtles have increased the size of a net that would need to be folded and stored below deck. Fishermen also stated that having to disassemble trawl gear for below deck stowage in rough sea conditions is a safety-at-sea concern. Additionally, some fishermen stated that they avoid the closed areas entirely as they were not able to meet the transit requirements.

Amendment 11 and the proposed rule are expected to update the regulations to better match the current design of the vessels in the fishery, reduce the socio-economic impact for fishermen who have difficulty transiting the cold weather closed areas under the current regulations, and improve safety at sea for fishermen through reduced travel time around the closed areas and by not having to disassemble fishing gear in rough weather for stowage below deck, while maintaining protection for overwintering white shrimp and enforceability of the regulations for the cold weather closed areas.

This proposed rule would revise the transit provisions for shrimp trawl vessels with penaeid shrimp on board transiting through cold weather closed areas in Federal waters of the South Atlantic. The proposed rule would allow a vessel to transit South Atlantic cold weather closed areas while possessing penaeid shrimp provided the vessel is in transit and fishing gear is appropriately stowed. Transit would be defined as non-stop progression through the area with fishing gear appropriately stowed. Fishing gear appropriately stowed would be defined as trawl doors are in the rack (cradle) on deck, nets would be in the rigging and tied down, and the try net would be on the deck. Doors in the rack means the trawl doors are stowed in their storage racks out of the water on the vessel's deck. Nets in the rigging means the trawl nets are out of the water and are tied to the trawl vessel's rigging.

The proposed transit provision was developed and recommended to the Council by the Council's Law Enforcement, Shrimp, and Deep-water Shrimp Advisory Panels. Doors in the rack (cradle), nets in the rigging and tied down, and try net on the deck would enable law enforcement on the water or in the air to see from a distance if fishermen are complying with the transit provisions without having to actually board the vessel, thereby saving time and reducing the safety risks associated with a vessel boarding.

The proposed rule would reduce the time needed to stow gear because fishermen would no longer need to disassemble the trawl gear (remove nets from the rigging and the doors) prior to stowing nets with mesh sizes less than 4 inches (10.2 cm) below deck. The proposed rule is expected to reduce adverse socio-economic and safety at sea impacts associated with the current transit provisions through reduced travel time around the closed areas and reduced time on the water for fishermen by not requiring gear stowage below deck.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with Amendment 11, the Shrimp FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

This proposed rule has been determined to be not significant for purposes of Executive Order 12866. This rule is expected to be an Executive Order 13771 deregulatory action.

The Magnuson-Stevens Act provides the legal basis for this proposed rule. No duplicative, overlapping, or conflicting Federal rules have been identified. In addition, no new reporting and record-keeping requirements are introduced by this proposed rule. Accordingly, the Paperwork Reduction Act does not apply to this proposed rule. A description of this proposed rule, why it is being considered, and the purposes of this proposed rule are contained in the preamble and in the SUMMARY section of the preamble. The objectives of this proposed rule are to ensure transit regulations are consistent with current fishing vessel designs, reduce the adverse social and economic effects on commercial shrimp fishing businesses that have not been able to transit closed areas due to an inability to comply with the current transit regulations, improve safety at sea and the enforceability of transit regulations, and maintain protection for over-wintering white shrimp.

The Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule, if adopted, will not have a significant economic impact on a substantial number of small entities. A description of the factual basis for this determination follows. All monetary estimates in the following analysis are in 2018 dollars. This proposed rule, if implemented, would allow vessels possessing penaeid shrimp, i.e., brown, white, or pink shrimp, to transit through cold weather closed areas in affected portions of the South Atlantic EEZ provided that the vessel remains in transit, gear is stowed with trawl doors in the rack, and nets in the rigging are tied down with the try net on the deck. Thus, this proposed rule is expected to directly regulate federally permitted vessels in the commercial South Atlantic shrimp fishing industry that harvest penaeid shrimp and transit through cold weather closed areas in affected portions of the South Atlantic EEZ.

Only permitted vessels that harvest penaeid shrimp would be directly regulated by this proposed rule. From 2014 through 2018, the average number of vessels with valid South Atlantic penaeid or rock shrimp permits was 594. From 2014 through 2018, the average number of vessels with valid permits that actively fished ( i.e., had landings) in the South Atlantic penaeid shrimp fishery was 262. Because it is not currently feasible to accurately determine affiliations between businesses that possess South Atlantic shrimp permits, for purposes of this analysis it is assumed each of these vessels is independently owned by a single business; however, this assumption likely leads to an overestimate of the actual number of businesses directly regulated by this proposed rule. Thus, this proposed rule is estimated to directly regulate 262 businesses in the commercial South Atlantic shrimp fishing industry, or about 44 percent of the average number of businesses that held valid South Atlantic penaeid or rock shrimp permits from 2014 through 2018.

For vessels with South Atlantic penaeid or rock shrimp permits, annual gross revenue was about $404,810 on average from 2014 through 2018, of which approximately $169,240 (about 42 percent) came from South Atlantic shrimp landings on average. Almost all trips that harvest rock shrimp also harvest penaeid shrimp. Many vessels are also relatively dependent on revenue from other Atlantic fisheries ( e.g., scallops and flounder) as well revenue from the Gulf of Mexico shrimp fishery. Based on average economic return estimates from 2011 through 2014, which are the most recent available, net cash flow for these vessels is estimated to be about $61,770 per year on average, and net revenue from commercial fishing operations is estimated to be approximately $35,030 per year on average from 2014 to 2018. The maximum annual gross revenue earned by a single vessel (business) was approximately $2.6 million from 2014 to 2018.

On December 29, 2015, NMFS issued a final rule establishing a small business size standard of $11 million in annual gross receipts (revenue) for all businesses primarily engaged in the commercial fishing industry (NAICS code 11411) for RFA compliance purposes only (50 CFR 200.1 and 200.2). In addition to this gross revenue standard, a business primarily involved in commercial fishing is classified as a small business if it is independently owned and operated, and is not dominant in its field of operations (including its affiliates). Based on the information above, all 262 businesses directly regulated by this proposed rule are determined to be small entities for the purpose of this analysis. Therefore, it is determined that this proposed rule will affect a substantial number of small entities.

Under the current regulations, shrimp trawl vessels transiting cold weather closed areas in the EEZ with penaeid shrimp on board are required to stow trawl nets with a mesh size of less than 4 inches (10.2 cm) below deck. Because many vessels are now required to use larger TEDS, they also use larger nets compared to when the current transit regulations were implemented. Shrimp fishermen also typically stow their spare nets on the wheelhouse roof because there is little room below deck to stow their gear.

In addition, cold weather closures are implemented more quickly now than when the transit regulations were initially established. While the reduced time to implement closures has enhanced protection of over-wintering white shrimp, shrimp vessel captains with homeports in states north of Florida can be caught unaware if they are operating off Florida when a closure is implemented. Furthermore, shoals extending into the EEZ off Georgia and South Carolina cause transiting through state waters to be dangerous and increase the risk to the vessel and crew. Thus, traveling back to a vessel's homeport can be risky for shrimp vessels that cannot comply with the current stowage requirements.

Shrimp vessels that have been unable to store fishing gear according to the current transit regulations have been forced to land their shrimp in Florida rather than at their homeport. Based on landings data during the most recent cold weather closures ( i.e., January through June of 2018), 33 vessels with homeports in states north of Florida offloaded shrimp in Florida during that time. This proposed rule would make it easier for these vessels to comply with the gear stowage requirements and, as a result, more easily return to their homeport with penaeid shrimp on board.

Although the economic effects of the proposed rule on commercial shrimp vessels cannot be quantified given available data and models, they are expected to be positive. Specifically, if vessels are able to land shrimp at their homeport with their homeport dealer, their profits would potentially increase as a result of expected cost reductions. Shrimp vessels would not incur additional offloading costs if they could offload their shrimp at their homeport dealer, and they would no longer have to absorb the costs of shipping shrimp back to their homeport dealer. Finally, shrimp vessels' fuel costs are expected to decrease as they would no longer need to take longer routes back to their homeports to avoid transiting through the cold water closed areas in the EEZ.

Based on the information above, although a substantial number of small entities would be affected by this proposed rule, this rule would not have a significant economic impact on those entities. Because this proposed rule, if implemented, would not have a significant economic impact on a substantial number of small entities, an initial regulatory flexibility analysis is not required and none has been prepared.

For the reasons set out in the preamble, 50 CFR part 622 is proposed to be amended as follows: