DOE maintains previously approved incorporations by reference and incorporates by reference the following industry standards into 10 CFR part 431:

Copies of ANSI C78.43-2017, ANSI C78.44-2016, ANSI C82.6-2015 (R2020), and ANSI C82.9-2016 are available at www.ansi.org or www.nema.org. Copies of IEC 63103:2020 are available on IEC's website at http://webstore.ansi.org.

For a further discussion of these standards, see section IV.N of this document.

MHLFs are included in the list of “covered products” for which the U.S. Department of Energy (“DOE”) is authorized to establish and amend energy conservation standards and test procedures. (42 U.S.C. 6295(a)(19)) DOE's energy conservation standards and test procedures for MHLFs are currently prescribed at 10 CFR 431.326 and 10 CFR 431.324, respectively. The following sections discuss DOE's authority to establish test procedures for MHLFs and relevant background information regarding DOE's consideration of test procedures for this equipment.

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  2 of EPCA established the Energy Conservation Program for Consumer Products Other Than Automobiles, which sets forth a variety of provisions designed to improve energy efficiency. These products include MHLFs, the subject of this document. 3 (42 U.S.C. 6292(a)(19) MHLFs contain metal halide lamp ballasts. Because the MHLF energy conservation standards in EPCA established a minimum efficiency for the ballasts incorporated into those fixtures, the test procedure requires measurement of metal halide lamp ballast efficiency. (42 U.S.C. 6295(hh)(1)(A))

The energy conservation program under EPCA consists essentially of four parts: (1) testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures. Relevant provisions of EPCA specifically include definitions (42 U.S.C. 6291), test procedures (42 U.S.C. 6293), labeling provisions (42 U.S.C. 6294), energy conservation standards (42 U.S.C. 6295), and the authority to require information and reports from manufacturers (42 U.S.C. 6296).

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 conservation standards adopted under EPCA (42 U.S.C. 6295(s)), and (2) making other 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))

Federal energy efficiency requirements for covered products established under EPCA generally supersede State laws and regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6297) DOE may, however, grant waivers of Federal preemption for particular State laws or regulations, in accordance with the procedures and other provisions of EPCA. (42 U.S.C. 6297(d))

Under 42 U.S.C. 6293, EPCA sets forth the criteria and procedures DOE must follow when prescribing or amending test procedures for covered products. EPCA requires that any test procedures prescribed or amended under this section shall be reasonably designed to produce test results which measure energy efficiency, energy use or estimated annual operating cost of a covered product during a representative average use cycle (as determined by the Secretary) or period of use and shall not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3))

EPCA sets forth that test procedures for metal halide lamp ballasts shall be based on ANSI C82.6-2005. 4 (42 U.S.C. 6293(b)(18))

EPCA also requires that, at least once every 7 years, DOE evaluate test procedures for each type of covered product, including MHLFs, to determine whether amended test procedures would more accurately or fully comply with the requirements for the test procedures to not be unduly burdensome to conduct and be reasonably designed to produce test results that reflect energy efficiency, energy use, and estimated operating costs during a representative average use cycle or period of use. (42 U.S.C. 6293(b)(1)(A))

If the Secretary determines, on her own behalf or in response to a petition by any interested person, that a test procedure should be prescribed or amended, the Secretary shall promptly publish in the Federal Register proposed test procedures and afford interested persons an opportunity to present oral and written data, views, and arguments with respect to such procedures. The comment period on a proposed rule to amend a test procedure shall be at least 60 days and may not exceed 270 days. In prescribing or amending a test procedure, the Secretary shall take into account such information as the Secretary determines relevant to such procedure, including technological developments relating to energy use or energy efficiency of the type (or class) of covered products involved. (42 U.S.C. 6293(b)(2)). If DOE determines that test procedure revisions are not appropriate, DOE must publish its determination not to amend the test procedures.

In addition, EPCA requires that DOE amend its test procedures for all covered products to integrate measures of standby mode and off mode energy consumption into the overall energy efficiency, energy consumption, or other energy descriptor, unless the current test procedure already incorporates the standby mode and off mode energy consumption, or if such integration is technically infeasible. (42 U.S.C. 6295(gg)(2)(A)) If an integrated test procedure is technically infeasible, DOE must prescribe separate standby mode and off mode energy use test procedures for the covered product, if a separate test is technically feasible. ( Id. ) Any such amendment must consider the most current versions of the International Electrotechnical Commission (“IEC”) Standard 62301  5 and IEC Standard 62087  6 as applicable. (42 U.S.C. 6295(gg)(2)(A))

DOE is publishing this final rule in satisfaction of the 7-year review requirement specified in EPCA. (42 U.S.C. 6293(b)(1)(A))

DOE's existing test procedure for MHLFs is codified at Title 10 of the Code of Federal Regulations (“CFR”) part 431, subpart S, § 431.324 (“Uniform test method for the measurement of energy efficiency and standby mode energy consumption of metal halide lamp ballasts”).

The Energy Independence and Security Act of 2007 (Pub. L. 110-140; EISA 2007) amended EPCA, requiring DOE to establish test procedures for metal halide lamp ballasts based on the industry standard ANSI C82.6-2005. (42 U.S.C. 6293(b)(18)) On March 9, 2010, DOE published a final rule establishing active mode and standby mode test methods for MHLFs based on measuring ballast efficiency in accordance with ANSI C82.6-2005 (“March 2010 Final Rule”). 75 FR 10950. In the March 2010 Final Rule, DOE determined that “off mode” as defined by EPCA is not applicable to MHLFs because there is no condition in which the components of a MHLF are connected to the main power source and are not already in a mode accounted for in either active or standby mode. Id. at 10954-10955.

On May 30, 2018, DOE published in the Federal Register a request for information seeking comments on the current test procedure for MHLFs. 83 FR 24680 (“May 2018 RFI”). On July 14, 2021, DOE published in the Federal Register a notice of proposed rulemaking (“NOPR”) proposing amendments to the current test procedure for MHLFs. 86 FR 37069 (“July 2021 NOPR”). DOE held a public meeting related to the July 2021 NOPR on August 5, 2021.

DOE received comments in response to the July 2021 NOPR from the interested parties listed in Table I.1.

This document addresses information and comments received in response to the July 2021 NOPR. A parenthetical reference at the end of a comment quotation or paraphrase provides the location of the item in the public record. 7

In this final rule, DOE amends 10 CFR 431.324, “Uniform test method for the measurement of energy efficiency and standby mode energy consumption of metal halide lamp ballasts,” as follows: (1) incorporating by reference new relevant industry standards as well as updating to latest versions of existing references; (2) revising definitions and reorganizing the content of the test procedure for better readability and clarity; (3) clarifying the selection of reference lamps to be tested with metal halide lamp ballasts; (4) specifying the light output level at which to test dimming ballasts in active mode; and (5) referencing IEC 63103:2020 and clarifying instructions for measuring the standby mode energy consumption of metal halide lamp ballasts.

The adopted amendments are summarized in Table II.1 compared to the test procedure provision prior to the amendment, as well as the reason for the adopted change.

DOE has determined that the amendments described in section III and adopted in this document will not alter the measured efficiency of MHLFs, or require retesting or recertification solely as a result of DOE's adoption of the amendments to the test procedures. Additionally, DOE has determined that the amendments will not increase the cost of testing. Discussion of DOE's actions are addressed in detail in section III of this document.

The effective date for the amended test procedures adopted in this final rule is 30 days after publication of this document in the Federal Register . Representations of energy use or energy efficiency must be based on testing in accordance with the amended test procedures beginning 180 days after the publication of this final rule.

In response to the July 2021 NOPR, DOE received general comments regarding amended test procedures for MHLFs as well as more specific comments regarding proposed updates to industry standards and clarifications of test methods. The amendments being adopted in this final rule and comments are discussed in the following sections.

In response to the July 2021 NOPR, Signify stated that the test procedure proposed by DOE seems reasonably designed to measure the energy use or efficiency of MHLFs during a representative average use cycle or period of use. (Signify, No. 10 at p. 11) Signify also recommended, however, that DOE not change the test procedure for MHLFs because the existing one successfully communicates ballast energy efficiency and the accelerated market transition to light-emitting diode (“LED”) technology reduces any potential benefits of improving the test procedure. (Signify, No. 10 at p. 2) NEMA similarly stated that MHLFs are a highly mature technology for which sales are migrating to LED products; and that therefore, sweeping changes to the test procedure were not necessary. (NEMA, Public Meeting Transcript, pp. 27-28)

Regarding impact on measured values, Signify stated that the test procedure updates proposed in the July 2021 NOPR would not have a significant impact on measured values used for certifying compliance, with possible exceptions of proposals regarding standby mode power and ballast efficiency for dimming ballasts. (Signify, No. 10 at p. 9)

DOE is publishing this final rule in satisfaction of the 7-year review requirement specified in EPCA, which requires DOE to determine whether amended test procedures would more accurately or fully comply with the requirements for the test procedures to not be unduly burdensome to conduct and be reasonably designed to produce test results that reflect energy efficiency, energy use, and estimated operating costs during a representative average use cycle or period of use. (42 U.S.C. 6293(b)(1)(A)) DOE finds that the adoption of applicable industry standards, updates to existing references of industry standards, and adoption of other clarifying amendments specified in the following sections will result in a more accurate test procedure and one that reflects industry best practices for testing MHLFs. Comments regarding the impacts on measured values resulting from amendments to standby mode testing and testing of dimming ballasts are discussed respectively, in sections III.F.2 and III.E.1.b. of this document.

EPCA and DOE regulations define MHLF as a light fixture for general lighting application designed to be operated with a metal halide lamp and a ballast for a metal halide lamp. (42 U.S.C. 6291(a)(64) and 10 CFR 431.322). Metal halide ballast is defined as a ballast used to start and operate metal halide lamps. (42 U.S.C. 6291(a)(62) and 10 CFR 431.322). Metal halide lamp is defined as a high intensity discharge (“HID”) lamp in which the major portion of the light is produced by radiation of metal halides and their products of dissociation, possibly in combination with metallic vapors. (42 U.S.C. 6291(a)(63) and 10 CFR 431.322).

DOE is not changing the scope of equipment covered by its MHLF test procedure, or the relevant definitions, in this final rule.

DOE provides definitions concerning metal halide lamp ballasts and fixtures at 10 CFR 431.322. In the July 2021 NOPR, DOE proposed to define several terms in 10 CFR 431.322 pertaining to the proposed test specifications for reference lamps used in testing (see section III.E.1 for greater detail). 86 FR 37069, 37079. Specifically, DOE proposed to define the term “reference lamp” as a lamp that meets the operating conditions of a reference lamp as defined by ANSI C82.9-2016. Id. DOE proposed to define “quartz metal halide lamp” as a lamp with an arc tube made of quartz materials, and “ceramic metal halide lamp” as a lamp with an arc tube made of ceramic materials. Id. Further, DOE proposed to amend the existing definition for the term “ballast efficiency” in 10 CFR 431.322 by removing clause 3 in the definition—which references “nominal system” and ANSI C78.43—since the test procedure in its entirety outlines the system requirements when testing the ballast efficiency of a metal halide lamp ballast. Id. DOE also proposed to remove clauses 4 and 5 in the “ballast efficiency” definition, which provide input power and output power specifications for ballasts with a frequency of 60 Hz, and greater than 60 Hz, respectively. DOE proposed to move these requirements to the test procedure found in 10 CFR 431.324 because they describe the test method. Id.

DOE received no comments regarding these modifications. For the reasons discussed in the July 2021 NOPR and in this paragraph, DOE is adopting these proposed changes to definitions in this final rule.

The MHLF test procedure currently incorporates by reference the 2005 version of ANSI C82.6 (“ANSI C82.6-2005”) and the 2004 version of ANSI C78.43 (“ANSI C78.43-2004”). 8 Industry periodically updates its testing standards to account for changes in technology, developments in test methodology, developments in test instruments, and/or changes in industry practice. In the July 2021 NOPR, DOE identified updated versions of the industry standards incorporated by reference in the MHLF test procedure as shown in Table III.1 of this document. 86 FR 37069, 37072.

DOE compared these updated versions to those versions currently referenced by DOE's test procedure to determine to what extent, if any, incorporating by reference the latest industry standards would alter the measured energy efficiency or measured energy use, as determined under the existing test procedure, as required by EPCA. (42 U.S.C. 6293(e)(1)) 86 FR 37069, 37073-37075. Specifically, DOE reviewed the 2020 version of ANSI C82.6 (“ANSI C82.6-2015 (R2020)”)  9 and the 2017 version of ANSI C78.43 (“ANSI C78.43-2017”)  10 for this purpose.

ANSI C82.6-2005 is an industry standard that describes the procedures to be followed, and the precautions to be taken, in measuring the performance of ballasts that operate HID lamps. In the July 2021 NOPR, DOE identified the following differences between the 2015 version of ANSI C82.6 and the 2020 version: The 2020 version of ANSI C82.6 includes a requirement that the ballast under test must be operated until it reaches equilibrium, thereby ensuring stable conditions for testing, which is already included in DOE's test procedure; the 2020 version of ANSI C82.6 provides greater flexibility by recommending the use of either a “make-before-break” or fast-acting switch for the basic stabilization method when switching a reference lamp from a reference ballast circuit to a test ballast circuit; the 2020 version of ANSI C82.6 clarifies certain headings consistent with specifications in the DOE test procedure; the 2020 version of ANSI C82.6 includes specifications pertaining to stabilization that reflect “best practices;” the 2020 version of ANSI C82.6 adds instrumentation requirements to improve consistency and repeatability of measured values, and that would not impact measured values; the 2020 version of ANSI C82.6 updates the list of pertinent measurements for electronic and magnetic ballasts; the 2020 version of ANSI C82.6 includes new sections that specify instrumentation to use and how to take certain measurements to improve consistency and repeatability; and reaffirms the equation for calculating ballast efficiency in DOE's regulations. 86 FR 37069, 37073-37074.

ANSI C78.43 is an industry standard that sets forth the physical and electrical characteristics for single-ended metal halide lamps operated on 60 Hertz (“Hz”) ballasts. DOE tentatively determined that the changes in ANSI C78.43-2017 are mainly updates to certain lamp datasheets related to lamp designations, physical descriptions of lamps, and minor changes to test parameters. 86 FR 37069, 37074. The updated datasheets would provide characteristics for additional reference lamps to use for testing, which DOE tentatively determined reflect current industry practice. 86 FR 37069, 37075.

In its review of the updated versions of ANSI C82.6 and ANSI C78.43, DOE tentatively determined that the changes would not result in a change in measured values or test burden. DOE proposed to reference ANSI C82.6-2015 (R2020) and ANSI C78.43-2017 in the DOE test procedure. Id.

In addition to updating existing references to industry standards in DOE's test procedure with the most recent versions, DOE proposed in the July 2021 NOPR to incorporate by reference additional industry standards related to the testing of MHLFs that were not already referenced in the test procedure. 86 FR 37069, 37075-37076. Specifically, DOE proposed to incorporate by reference ANSI C78.44-2016  11 to provide the physical and electrical characteristics for testing with double-ended metal halide lamps, ANSI C82.9-2016  12 to provide the definition of a reference lamp and IEC 62301:2011 for the measurement of standby mode energy consumption. Id. DOE tentatively determined that the inclusion of ANSI C78.44-2016 would ensure that necessary specifications are being provided for testing metal halide ballasts that operate double-ended metal halide lamps. Id. DOE tentatively determined that industry already adheres to stipulations for reference lamps as specified in ANSI C82.9-2016. Id. Regarding standby mode, DOE noted that it developed the standby mode test method to be consistent with the industry standard IEC 62301:2005, but also through reference to ANSI C82.6-2005. 86 FR 37069, 37076. DOE tentatively determined to directly incorporate by reference the most recent version, IEC 62301:2011. Id.

In the July 2021 NOPR, DOE requested comment on its proposal to incorporate by reference ANSI C82.6-2015 (R2020), ANSI C78.43-2017, ANSI C78.44-2016, ANSI C82.9-2016, and IEC 62301:2011 in the MHLF test procedure. 86 FR 37069, 37085.

Signify expressed support for incorporating by reference ANSI C82.6-2015 (R2020), ANSI C78.43-2017, ANSI C78.44-2016, and ANSI C82.9-2016, stating that the standards are congruent with the latest ANSI C82 committee consensus on the technical requirements and test procedures of metal halide ballasts and lamps. Signify stated that updated versions of ANSI C78.43-2017, ANSI C78.44-2016, and ANSI C82.9-2016 offer more accurate descriptions than previous editions and should not have a major impact on test results. (Signify, No. 10 at p. 2, 3)

In this final rule, as proposed in the July 2021 NOPR and based on the discussion in the preceding paragraphs and in the July 2021 NOPR, DOE incorporates by reference the industry standards ANSI C82.6-2015 (R2020), ANSI C78.43-2017, ANSI C78.44-2016, and ANSI C82.9-2016. In this final rule, DOE is not adopting IEC 62301:2011 for the measurement of standby mode energy consumption as proposed in the July 2021 NOPR. In its place, DOE is adopting IEC 63103:2020 to replace references to ANSI C82.6 in the MHLF standby mode test method (see section III.F.2 of this document for further details). DOE has determined that, because these updates to industry standard references do not involve substantive changes to the test setup and methodology but rather are clarifications that align DOE's test procedures with latest industry best practices, they will not affect measured values.

In this final rule, as proposed in the July 2021 NOPR, DOE adopts clarifying modifications to the active mode test method specified in 10 CFR 431.324. Specifically, DOE amends the test conditions and setup, as well as the test method for the measurement of ballast efficiency of MHLFs. DOE also amends the test procedure to specify that the language in 10 CFR 431.324 takes precedence over the industry standard in cases where there is a conflict between any referenced industry standard and the language of the test procedure as revised by this final rule.

DOE has determined that, because the adopted amendments to the active mode test method do not involve substantive changes to the test methodology but rather clarifications, they will not affect measured values. DOE details the amendments to the active mode test method and discussion of comments in the following subsections.

Paragraph (b)(1)(i) (“Test Conditions”) of 10 CFR 431.324 specifies test conditions and setup requirements applicable to active mode testing. In the July 2021 NOPR, DOE proposed to amend the test conditions and setup paragraph to more accurately reference industry standards and the relevant sections of those standards, provide direction for testing metal halide lamp ballasts that operate lamps of different wattages or lamp types, and specify testing of dimming metal halide lamp ballasts at maximum input power. 86 FR 37069, 37076. DOE also proposed to revise the heading of paragraph (b)(1)(i) from “Test Conditions” to “Test Conditions and Setup” and to redesignate it as paragraph (b)(2) of the revised 10 CFR 431.324 to align with proposed additions to paragraph (b) pertaining to test setup. Id. The specific amendments as proposed and finalized are discussed in further detail in the sections that follow.

Paragraph (b)(1)(i) of 10 CFR 431.324 references Section 4.0, “General Conditions for Electrical Performance Tests,” of ANSI C82.6 for power supply, ballast test conditions, lamp position, lamp stabilization, and test instrumentation. In the July 2021 NOPR, DOE proposed to relocate lamp stabilization requirements from this paragraph to the test method paragraph, newly designated as paragraph (b)(3), because lamp stabilization is part of the test method rather than a test condition, and to better align the test procedure with the organization of the updated ANSI C82.6 standard. 86 FR 37069, 37076. (See section III.E.2.a of this document regarding changes to the stabilization method) Also within the redesignated test conditions paragraph (b)(2), DOE proposed to include specification that the circuits used for testing must be in accordance with the circuit connections set forth in Section 6.3 of ANSI C82.6. Id.

DOE received no comments regarding these modifications. In this final rule, for reasons discussed in this section and in the July 2021 NOPR, DOE adopts these changes as proposed.

In the March 2010 Final Rule, DOE determined that active mode applies to a functioning ballast operating with any amount of rated system light output ( i.e., greater than zero percent), and noted that if a ballast is dimmed ( i.e., operating the light source at more than zero percent, but less than 100 percent), the lamp and the ballast are both still in active mode. 75 FR 10950, 10953. In the July 2021 NOPR, DOE tentatively determined that in the case of dimming ballasts, where input power can vary, a specification regarding how to test these ballasts is necessary. DOE proposed to specify that dimming metal halide lamp ballasts be tested at maximum input power. 86 FR 37069, 37076.

Signify expressed support for DOE's proposal to specify that dimming metal halide lamp ballasts be tested at maximum input power. (Signify, No. 10 at p. 4) Signify commented that magnetic metal halide ballasts should not be dimmed below 50 percent rated power because the lamp operation may become unstable, the lamp color may shift dramatically, and the lamp electrodes' sputtering rate may significantly decrease lamp lifetime. Signify further commented that while electronic metal halide ballasts can dim metal halide lamps below 50 percent rated power, color shift and lifetime issues may remain. For these reasons, Signify stated that the best practical way to test dimming metal halide lamp ballasts is at full power. (Signify, No. 10 at pp. 4-5, 5) Signify further stated that the proposed clarification to test dimming ballasts at maximum power could change measured values if manufacturers had previously tested ballasts at different dimming points. Signify stated, however, that testing at maximum power is appropriate practice. (Signify, No. 10 at p. 10)

DOE appreciates information on the dimming characteristics of metal halide ballasts. In this final rule, DOE is specifying to test dimming ballasts at maximum input power, i.e., at a non-dimmed level. DOE's review of the market indicates that specification sheets for dimming metal halide lamp ballasts provide input power at 100 percent power level as well as at lower power levels. Therefore, DOE does not expect this specification to result in a change in measured values of representations. In this final rule, for reasons specified in preceding paragraphs and in the July 2021 NOPR, DOE amends the test procedure to specify that dimming metal halide lamp ballasts be tested at maximum input power.

Reference lamps must be used for testing MHLF ballast efficiency. Based on responses on the May 2018 RFI, DOE confirmed that the availability of reference lamps for metal halide ballast testing is sufficient and, in the July 2021 NOPR, proposed several additions to the test conditions and setup paragraph of 10 CFR 431.324 to clarify the selection of metal halide lamps used in testing metal halide lamp ballasts. 86 FR 37069, 37076. ANSI C82.9-2016 provides definitions related to specific terms used in industry standards for HID lamps and ballasts. Thus, in the July 2021 NOPR, DOE proposed to specify that the metal halide lamps used for testing must meet the definition of a reference lamp as defined by ANSI C82.9-2016. In addition, ANSI C78.43-2017 and ANSI C78.44-2016 specify the physical and electrical requirements that single-ended and double-ended metal halide lamps operated on 60 Hz ballasts must meet to qualify as reference lamps. Therefore, DOE also proposed that the metal halide lamps used for testing must be within the acceptable range for a reference lamp of the rated values specified in ANSI C78.43-2017 and ANSI C78.44-2016 for single-ended metal halide lamps and double-ended metal halide lamps, respectively. Id.

The definition of basic model for MHLFs states that basic models are rated to operate a given lamp type and wattage. 10 CFR 431.322. Therefore, as DOE noted in the July 2021 NOPR, metal halide ballasts capable of operating multiple lamp wattages currently fall within multiple basic models. 86 FR 37069, 37077. No specification regarding the reference lamp to be used in testing metal halide lamp ballasts, pertaining to either lamp wattage or lamp type, is provided in 10 CFR 431.324. Thus, DOE proposed revisions to the test procedure to clarify the wattage and type of reference lamp to be used for testing. Id.

DOE has identified metal halide lamp ballasts that may be able to operate lamps of different wattages ( e.g., a ballast that can operate a 70 W lamp or 100 W lamp). Section 6.18 of ANSI C82.6-2015 (R2020) states that, if a ballast can operate multiple lamp types, some (unspecified) regulations require that a ballast be tested with the highest lamp power specified by the manufacturer. Thus, in the July 2021 NOPR, DOE proposed to add a requirement to 10 CFR 431.324 that metal halide lamp ballasts designated with ANSI codes corresponding to more than one lamp must be tested with the lamp having the highest nominal lamp wattage as specified in ANSI C78.43-2017 or ANSI C78.44-2016, as applicable. 86 FR 37069, 37077.

DOE also identified some ballasts that can operate both ceramic metal halide lamps and quartz metal halide lamps. Based on data collected for DOE's HID lamps final rule determination published on December 9, 2015 (80 FR 76355), 13 DOE has determined that quartz metal halide lamps are more popular than ceramic metal halide lamps. In the July 2021 NOPR, DOE proposed to add a requirement to 10 CFR 431.324 that ballasts designated with ANSI codes corresponding to both ceramic metal halide lamps (code beginning with “C”) and quartz metal halide lamps (code beginning with “M”) of the same nominal lamp wattage must be tested with the quartz metal halide lamp. 86 FR 37069, 37077.

Signify expressed support for the proposal to test ballasts with lamps at the highest lamp wattage. Signify expressed no preference for testing with a quartz metal halide lamp over a ceramic metal halide lamp. (Signify, No. 10 at p. 5) Signify asserted that using a reference lamp ensures test result repeatability because the ballast load will always be operating at nominal voltage, whereas lamps used in practice undergo voltage variation as they age. (Signify, No. 10 at pp. 5-6)

For the reasons discussed in the preceding paragraphs and in the July 2021 NOPR, in this final rule DOE adopts the proposed requirements that for ballasts capable of operating lamps of different wattages, select the reference lamp with the highest wattage; and for ballasts capable of operating quartz metal halide lamps and ceramic metal halide lamps of the same wattage, select the quartz metal halide lamp for testing.

In the July 2021 NOPR, DOE proposed to add paragraphs to the test method paragraph describing requirements for lamp stabilization, test measurements, and calculations. DOE also proposed to revise the heading of paragraph (b)(2) of 10 CFR 431.324 from “Test Measurement” to “Test Method” and redesignate it as paragraph (b)(3) to align with the proposed revisions to paragraph (b). In addition, DOE proposed to add the ballast efficiency calculation contained in paragraph (b)(3) of existing 10 CFR 431.324 to the “Test Method” paragraph to further improve organization. 86 FR 37069, 37077. The specific amendments as proposed are discussed in further detail in the sections that follow.

Paragraph (b)(1)(i) (“Test Conditions”) of 10 CFR 431.324 contains instructions for lamp stabilization prior to testing (hereafter referred to as the “basic stabilization method”). Paragraph (b)(1)(ii) of 10 CFR 431.324 (“Alternative Stabilization Method”) specifies an alternate stabilization method for cases where switching without extinguishing the lamp is impossible, or for low-frequency electronic ballasts.

In the July 2021 NOPR, DOE proposed to replace the explicit instructions for lamp stabilization in 10 CFR 431.324 with direct references to Sections 4.4.2 and 4.4.3 of ANSI C82.6-2015 (R2020) for the basic stabilization method and the alternative stabilization method, respectively. 86 FR 37069, 37077. DOE had adopted the explicit stabilization instructions in the March 2010 Final Rule based on then-anticipated changes to the updated version of ANSI C82.6 provided by NEMA. Id. Because the explicit instructions for lamp stabilization in 10 CFR 431.324 are now contained in ANSI C82.6-2015 (R2020), DOE proposed to reference the relevant sections, Sections 4.4.2 and 4.4.3. Id. DOE noted one difference in the basic lamp stabilization method in 10 CFR 431.324 compared ANSI C82.6-2015 (R2020) and proposed to keep the specification in 10 CFR 431.324, as it is clearer and more practical to execute. Id. Specifically, ANSI C82.6-2015 (R2020) states that stabilization is determined by operating the lamp within 3 percent of its rated wattage in the specified ambient temperature until the electrical parameters “cease to change.” In 10 CFR 431.324, stabilization is reached when the lamp's electrical characteristics vary by no more than 3 percent in three consecutive 10- to 15-minute intervals. In the July 2021 NOPR, DOE tentatively determined that the verbiage “cease to change” in the updated ANSI stability criteria would be nearly impossible to meet, as electrical parameters are expected to change by a small percentage after each measurement. Id.

Signify expressed support for retaining the basic stabilization method and adopting the alternative stabilization method described in ANSI C82.6-2015 (R2020). Signify added that the basic stabilization method has been successfully used to test magnetic metal halide lamp ballasts but cannot be used for electronic metal halide lamp ballasts, as stably transferring a lamp from a warmup (standby) ballast to an electronic ballast is difficult. (Signify, No. 10 at p. 6) Signify explained that when lamps on electronic ballasts are disconnected and transferred, or are in “no lamp” condition, they either power off until the power supply comes back on, or they power their lamp ignition circuit on again—neither of which are suitable for a stable transfer. Signify stated that the alternative stabilization method ensures repeatable ballast efficiency test results for electronic ballasts by avoiding multiple lamp reignitions. (Signify, No. 10 at p. 7)

DOE reiterates that replacement of the basic stabilization method instructions with direct references to Section 4.4.2 of ANSI C82.6-2015 (R2020) would maintain the same method as currently specified, as the current instructions are consistent with ANSI C82.6-2015 (R2020), with the exception noted above regarding specific intervals for stabilization determination. As described in the preceding paragraphs and in the July 2021 NOPR, in this final rule DOE is replacing the explicit instructions for lamp stabilization in 10 CFR 431.324 with direct references to Sections 4.4.2 and 4.4.3 of ANSI C82.6-2015 (R2020) for the basic stabilization method and the alternative stabilization method, respectively. DOE is also specifying for the basic stabilization method that stabilization is reached when the lamp's electrical characteristics vary by no more than 3-percent in three consecutive 10- to 15-minute intervals measured after the minimum burning time of 30 minutes, consistent with the proposal in the July 2021 NOPR.

Paragraph (b)(2) of 10 CFR 431.324 specifies that the ballast input power and lamp output power during operating conditions must be measured in accordance with the methods specified in Section 6.0 of ANSI C82.6-2005. In ANSI C82.6-2015 (R2020), Sections 6.1 and 6.8 pertain specifically to measuring ballast input power, and Sections 6.2 and 6.10 pertain specifically to measuring lamp output power. In the July 2021 NOPR, DOE proposed to remove the general reference to Section 6 of ANSI C82.6 in 10 CFR 431.324 and to instead specifically reference Sections 6.1 and 6.8 of ANSI C82.6-2015 (R2020) for measuring ballast input power, and sections 6.2 and 6.10 of ANSI C82.6-2015 (R2020) for measuring lamp output power. DOE expected that these updates would further clarify the test procedure and not change measured values. 86 FR 37069, 37077.

DOE received no comments regarding these updates. For the reasons discussed in the July 2021 NOPR and in this paragraph, DOE is adopting these proposed changes in this final rule.

Paragraph (b)(3) of 10 CFR 431.324 (“Efficiency Calculation”) specifies that the measured lamp output power must be divided by the measured ballast input power to determine the percent efficiency of the ballast under test to three significant figures.

In the July 2021 NOPR, DOE proposed to amend this instruction by referencing the specific sections in the DOE test procedure that specify how to measure ballast input power and ballast output (lamp) power. 86 FR 37069, 37078. Specifically, DOE proposed the amended instruction to state that the measured ballast output (lamp) power, as measured in paragraph (b)(2)(ii)(B), must be divided by the measured ballast input power, as measured in paragraph (b)(2)(ii)(B), to determine the percent efficiency of the ballast under test to three significant figures.

DOE received no comments regarding these proposed amendments to the test procedure. For the reasons discussed in the July 2021 NOPR and in this paragraph, DOE is adopting these proposed changes in this final rule. DOE notes that in the amended test procedure, this instruction is specified in paragraph (b)(3)(iii)(A) of 10 CFR 431.324.

Paragraph (c) of 10 CFR 431.324 (“Testing and Calculations-Standby Mode) specifies the procedure for measuring standby mode energy consumption. This paragraph explicitly states that the measurement of standby mode need not be performed to determine compliance with energy conservation standards for metal halide lamp fixtures at this time. 10 CFR 431.324(c). That paragraph further states that this statement will be removed as part of the rulemaking to amend the energy conservation standards for metal halide lamp fixtures to account for standby mode energy consumption, and the specified procedure shall apply on the compliance date for such requirements. Id. However, all representations related to standby mode energy consumption of MHLFs made after September 7, 2010, must be based upon results generated under this test procedure. Id.

In this final rule, as proposed in the July 2021 NOPR, DOE adopts clarifying modifications to the standby mode test method specified in 10 CFR 431.324. 86 FR 37069, 37079. DOE has determined that, because the adopted amendments to standby mode test procedures do not involve substantive changes to the test methodology, they will not affect measured values. DOE details the amendments to the standby mode test method and discussion of comments in the following subsections.

In the July 2021 NOPR, DOE proposed to modify the general instructions of the standby mode test method found in existing paragraph (c) to clarify that standby mode energy consumption need only be measured for ballasts capable of operating in standby mode. DOE also proposed to state that the language in 10 CFR 431.324 would take precedence if there is a conflict between the industry standard, IEC 62301:2011, proposed to be adopted through reference, and the language in the revised DOE test procedure. 86 FR 37069, 37079.

DOE received no comments regarding these proposed amendments to the test procedure. For the reasons discussed in the July 2021 NOPR and in the preceding paragraph, DOE is adopting the changes to the test conditions and setup instructions as proposed.

Both the active mode and standby mode test methods measure input power of the ballast. As such, for consistency within the test procedure and to reduce the test burden, in the July 2021 NOPR, DOE proposed to modify the test conditions and setup paragraph in the standby mode test method with the following directions: (1) test conditions and setup must be in accordance with the active mode test method, and (2) each ballast must be operated with a lamp as specified in the active mode test method, except that the use of a reference lamp is not required. 86 FR 37069, 37079. Because lamps are not turned on during the measurement of standby mode energy consumption, DOE tentatively determined that whether the lamp to which the ballast is connected is a reference lamp does not impact standby mode energy consumption measurements. In addition, DOE proposed to revise the heading “Test Conditions” of paragraph (c)(1) of existing 10 CFR 431.324 to “Test Conditions and Setup”, redesignated as paragraph (c)(2), to reflect these changes. Id.

Signify expressed support for the proposed amendments with no additional comment. (Signify, No. 10 at p. 7)

For the reasons discussed in the July 2021 NOPR and in preceding paragraphs, DOE adopts its proposal to reference the active mode test method section for the test conditions and setup of the standby mode test method, and to specify that each ballast must be operated with a lamp as specified in the active mode test method, except that the use of a reference lamp is not required.

In the July 2021 NOPR, DOE proposed to add a new paragraph, designated as (c)(3), with the heading “Test Method and Measurement,” containing specific instructions related to the measurement of standby mode energy consumption. 86 FR 37069, 37079. DOE proposed to: (1) add instructions to turn on, at full light output, the lamp to which the ballast is connected to ensure the ballast is not defective and (2) require ballast stabilization and subsequent measurement of standby mode energy consumption to be conducted according to Section 5 of IEC 62301:2011. Id.

Signify stated that DOE's proposed instruction to require the lamp be turned on to ensure the ballast is not defective prior to measuring standby mode energy consumption is reasonable. Signify added that since a defective ballast may appear to be operating in standby mode with an unlit lamp, the ballast should be powered on before and after taking standby mode power measurements to verify it is operating properly. (Signify, No. 10 at p. 8)

DOE determined that turning the lamp on prior to measurement is sufficient for verifying that the ballast is not defective—that it is providing the power supply necessary to operate the lamps, and that turning it on after the measurement is not necessary. This also aligns with DOE's standby mode test method for fluorescent lamp ballasts (see appendix Q).

For the reasons discussed in the preceding paragraphs and in the July 2021 NOPR, in this final rule, DOE adopts its proposed instructions requiring the lamp be turned on prior to measurement to ensure the ballast is not defective prior to measuring standby mode energy consumption.

Regarding DOE's proposal to stabilize and measure standby mode energy consumption in accordance with Section 5 of IEC 62301:2011, as discussed, EPCA directs DOE to establish test procedures to include standby mode energy consumption, taking into consideration the most current versions of Standards 62301 and 62087 of the International Electrotechnical Commission. (42 U.S.C. 6295(gg)(2)(A)) In establishing the standby test procedure for MHLFs, DOE developed the test procedure to be consistent with IEC Standard 62301. 75 FR 10950, 10959. IEC Standard 62087 applies only to audio, video, and related equipment, and does not apply to lighting products. IEC 62301:2011 does not specifically address lighting products but applies generally to household electrical appliances, which include lighting products. In order to develop a test method that would be familiar to metal halide lamp ballast manufacturers, DOE also referenced language and methodologies presented in ANSI C82.6-2005. Id.

In the July 2021 NOPR, DOE proposed a standby mode test procedure that directly references IEC 62301:2011 to replace the test procedure based on IEC 62301 with references to ANSI C82.6. Specifically, DOE proposed to reference Section 5 of IEC 62301:2011 for stabilization and standby mode energy consumption measurements. 86 FR 37069, 37078-37079. DOE noted that ANSI C82.6 does not explicitly address measurements for standby mode, whereas IEC 62301:2011 provides instructions for measuring standby mode energy consumption of household electrical appliances. Id. In the May 2019 RFI, DOE requested comment on the potential impact of incorporating IEC 62301:2011. NEMA responded that IEC 62301:2011 is not applicable to high intensity discharge (“HID”) lamp ballasts. In response, in the July 2021 NOPR, DOE referred NEMA to section 1 of IEC 62301:2011 which states the standard is applicable to electrical products with certain rated voltages which would include metal halide lamp ballasts. Id. In the July 2021 NOPR, DOE tentatively determined that replacing the currently referenced industry standard (ANSI C82.6-2005) with one that addresses standby mode energy consumption (IEC 62301:2011) would improve clarity, better align with the requirements of EPCA and the standby mode test methods for other lighting products. 86 FR 37069, 37078-37079.

China, Signify, and NEMA recommended that DOE adopt IEC 63103:2020 rather than IEC 62301 for measuring standby mode power. (China, No. 9 at p. 3; Signify, No. 10 at pp. 2-3; NEMA, Public Meeting Transcript, pp. 14-15) China stated that standby power measurements should adhere to IEC 63103:2020, as MHLFs are lighting devices, and asserted that IEC 62301:2011 is for household appliances. (China, No. 9 at p. 3)

Signify stated that MHLFs are not used in household applications and that IEC 63103:2020 has been specifically developed to measure low power modes, such as standby mode, of lighting devices and systems. Signify stated that the definition of standby power in IEC 63103:2020 is “standby mode [of lighting equipment] when the equipment is connected to a supply voltage with the illumination function off, while capable of being activated by an external trigger not being a trigger from a network,” which better aligns with DOE's definition. (Signify, No. 10 at p. 3) Signify stated that IEC 63103:2020 includes more specific guidelines and clarifications for stabilizing MHLFs than IEC 62301:2011 does, and that the ANSI C137 Lighting Systems Committee is in the process of adopting IEC 63103:2020 as an ANSI standard for similar reasons. (Signify, No. 10 at pp 3-4; 8-9)

NEMA stated that when IEC 62301:2011 was the only standby mode testing standard, it was acceptable to use for MHLFs; but now that the lighting industry has written a standby testing standard ( i.e., IEC 63103:2020), it is more appropriate to use it. (NEMA, Public Meeting Transcript, pp. 14-15)

As noted in the July 2021 NOPR, DOE proposed to reference Section 5 of IEC 62301:2011 for stabilization and standby mode energy consumption measurements. 86 FR 37069, 37079. To evaluate commenters' recommendation to reference IEC 63103:2020 instead of IEC 62301:2011, DOE reviewed the method for stabilization and standby mode energy consumption measurements in the two standards in a line-by-line comparison. The method of stabilization and measurement are specified in Section 5.3 of IEC 62301:2011 and in Section 5.4 of IEC 63103:2020. Instructions in both these sections outline the same three options for stabilization and measurement of standby mode energy consumption: a direct meter reading method, an average reading method, and a sampling method. Sections in both standards describe the direct meter reading method as recording the instrument power reading; the average reading method as averaging power readings over a specified period or alternatively recording the accumulated energy consumption over a specified period and dividing by the period; and the sampling method as recording power measurements at regular intervals throughout the measurement period. Sections in both standards specify that the direct meter reading method shall only be used where the mode does not change and the power reading displayed is stable, and that results from the other two methods have precedence over this method. Both standards do not permit the average reading method for cyclic loads or limited duration modes and specify that the sampling method shall be used for cyclic or unstable modes and where there is doubt regarding the behavior of the test unit. Further, in each method, the steps for stabilizing and taking measurements are laid out in the same manner and use almost identical language. The only differences in the methods described in IEC 62301:2011 and IEC 63103:2020, shown in Table III.2, are the threshold at which the test unit is considered stable.

As shown in Table III.2, IEC 63103:2020 specifies slightly less stringent stabilization thresholds than IEC 62301:2011 ( e.g., specifying for the sampling method that the cumulative average of all data points in the second two thirds of the total time period must fall within a band of ±1 percent, as opposed to a band of ±0.2 percent). DOE finds that these minor differences in stability criteria would not result in measurably different values of standby power between the two methods. As commenters have noted, IEC 63103:2020 was specifically developed to measure standby mode of lighting devices, and thereby established stabilization thresholds more relevant to such products.

Finally, as noted in preceding paragraphs, DOE requested comment on its consideration of referencing IEC 62301:2011 in the May 2019 RFI and its proposal to reference it in the July 2021 NOPR. 86 FR 37069, 37078-37079. Because IEC 62301:2011 and IEC 63103:2020 provide the same test methods for stabilization and measurement, different only in certain stabilization thresholds, interested parties have had the opportunity to comment on the method of measuring standby mode in accordance with IEC 63103:2020. As commented by interested parties (as summarized in the preceding paragraphs), DOE has determined that the adoption of IEC 63103:2020 better aligns with the lighting industry's best practices for measuring standby mode energy consumption.

As directed by EPCA, DOE has taken into consideration IEC 62301 for the standby mode energy consumption test method (42 U.S.C. 6295(gg)(2)(A)). As stated, the test method provided in IEC 63103:2020 applicable to MHLFs is essentially the same test method as proposed by reference in IEC 62301. DOE has determined that the two test methods would produce equivalent results. As IEC 63103:2020 is specific to lighting, DOE has determined that it is the more appropriate industry standard to reference for measuring standby mode energy consumption of MHLFs. For these reasons, in this final rule DOE amends the MHLF test procedure to reference Section 5.4 of IEC 63103:2020 for stabilizing and measuring the standby mode energy consumption of MHLF ballasts.

Regarding the implications of replacing the reference to ANSI C82.6-2005, Signify stated that the standby power test method specified by ANSI C82.6-2005 is very different from the proposed IEC 62301:2011 method, and thus measured values could change. Signify stated the impact would be minimal, however, as few metal halide lamp ballasts operate in standby mode. Signify also noted that DOE has no efficiency standard for standby mode. (Signify, No. 10 at pp. 10-11)

As noted by Signify and as discussed previously, DOE currently does not prescribe standards that incorporate standby mode energy consumption of MHLFs. Based on a review of MHLFs and metal halide lamp ballasts on the market, DOE has determined that manufacturers are not making representations of standby mode power consumption in public-facing materials; therefore, amending the test procedure to reference IEC 63103:2020 (which, as discussed, produces results equivalent to IEC 62301:2011) rather than ANSI C82.6-2005 will result in no impact for MHLF manufacturers.

The effective date for the adopted test procedure amendment will be 30 days after publication of this final rule in the Federal Register . EPCA prescribes that all representations of energy efficiency and energy use, including those made on marketing materials and product labels, must be made in accordance with an amended test procedure, beginning 180 days after publication of the final rule in the Federal Register . (42 U.S.C. 6293(c)(2)) EPCA provides an allowance for individual manufacturers to petition DOE for an extension of the 180-day period if the manufacturer may experience undue hardship in meeting the deadline. (42 U.S.C. 6293(c)(3)) To receive such an extension, petitions must be filed with DOE no later than 60 days before the end of the 180-day period and must detail how the manufacturer will experience undue hardship. ( Id. )

In this document, DOE amends the existing test procedure for MHLFs by (1) incorporating by reference new relevant industry standards as well as updating to latest versions of existing references; (2) revising definitions and reorganizing the content of the test procedure for better readability and clarity; (3) clarifying the selection of reference lamps to be tested with metal halide lamp ballasts; (4) specifying the light output level at which to test dimming ballasts in active mode; and (5) referencing IEC 63103:2020 and clarifying instructions for measuring the standby mode energy consumption of metal halide lamp ballasts. DOE has determined that the test procedure as amended by this final rule would not impact testing costs as discussed in the following paragraphs.

In the July 2021 NOPR, DOE tentatively determined that the proposed amendments to the MHLF test procedure would not be unduly burdensome to conduct and would result in neither a reduction of nor an increase in future testing costs. 86 FR 37069, 37080. The proposed amendments update industry standard references of ANSI C78.43 from version 2004 to 2017 and ANSI C82.6 from version 2005 to 2020 and references three new standards: ANSI C78.44-2016 to incorporate industry-approved lamp characteristics for double-ended metal halide lamps; ANSI C82.9-2016 to incorporate industry-approved definition for reference lamp; and IEC 62301:2011 to incorporate an industry standard that is specific to standby energy consumption measurement. Id. In the July 2021 NOPR, DOE tentatively determined these updates only clarify requirements, and do not add complexity to test conditions/setup or add test steps. Id. In this final rule, DOE is adopting IEC 63103:2020 rather than IEC 62301:2011. As discussed in section III.F.2 of this document, these two standards specify slightly different stabilization thresholds but are expected to yield equivalent standby power measurement results. Therefore, DOE finds that its preliminary conclusions pertaining to IEC 62301:2011 also apply to IEC 63103:2020 as adopted in this final rule.

Further, DOE finds that the amendments, aside from updates and addition of industry standards, being adopted in this final rule and proposed in the July 2021 NOPR provide further clarification to DOE's test procedure for MHLF, do not substantively change the existing test methods and therefore do not impact test burden or testing costs. These amendments are clarifications regarding selection of reference lamps (see section III.E.1.c); of definitions (see section III.C); of light output level at which to test dimming ballasts (see section III.E.1.b); and testing standby mode energy consumption (see section III.F).

Signify stated that adopting the test procedure updates will incur approximately $50,000 in additional costs through the need for a new National Voluntary Laboratory Accreditation Program (“NVLAP”) accreditation and to acquire equipment compatible with the proposed IEC standby power test method. Signify added that laboratories conducting the standby power test method will undergo a testing time increase of at least 90 minutes per unit. Signify stated that additional costs and test burden are unnecessary given the market transition to LED technology. (Signify, No. 10 at p. 11-12)

As stated in the July 2021 NOPR, a laboratory gaining accreditation to test MHLFs according to the test procedure in 10 CFR 431.324 would be doing so voluntarily or as required by an entity other than DOE. Accreditation by NVLAP is not required by DOE under 10 CFR part 431 or 10 CFR part 429 for the testing of MHLFs, and therefore does not factor into testing costs associated with DOE's test procedure. 86 FR 37069, 37080. Regarding acquisition of test equipment compatible with the adoption of the IEC standard for standby mode energy consumption, DOE reviewed the instrumentation information provided in the IEC standards and did not identify the need for any equipment for power measurements that laboratories would not already have for taking power measurements of electrical products.

In this final rule, DOE is specifying to stabilize the ballast and measure its standby mode energy consumption in accordance with Section 5.4 of IEC 63103:2020 (see section III.F.2). DOE has determined that this amendment does not add testing time to the standby mode test method. Prior to this amendment the standby mode test method stated ballast test conditions shall be as specified in Section 4.0 of ANSI C82.6 and input power shall be measured as specified in Section 6.0 of ANSI C82.6. However, Section 4.0 of ANSI C82.6 provides specifications for lamp stabilization, not specifications, as provided in Section 5.4 of IEC 63103:2020, for ballast stabilization in standby mode ( i.e., lamp is turned off). DOE assumes that when using the previous standby test method any lab or manufacturer would follow best practices and stabilize the unit being tested before taking measurements. Section 5.4 of IEC 63103:2020 provides three different step-by-step methods of determining stabilization and taking the final power measurement (see section III.F.2). These methods are not new and are almost the same ones employed in the industry standard for determining standby mode energy consumption for household electrical appliances, IEC 62301:2011. DOE finds that manufacturers, in accordance with best industry practices, would likely have used a method similar to the ones provided in Section 5.4 of IEC 63103:2020. Hence DOE has determined that referencing Section 5.4 of IEC 63103:2020 for stabilization and measurement of the standby mode energy consumption of the ballast does not result in additional testing time.

In summary, DOE has determined that the amendments adopted in this final rule do not impact test burden or testing costs.

Executive Order (“E.O.”)12866, “Regulatory Planning and Review,” as supplemented and reaffirmed by E.O. 13563, “Improving Regulation and Regulatory Review, 76 FR 3821 (Jan. 21, 2011), requires agencies, to the extent permitted by law, to (1) propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public. DOE emphasizes as well that E.O. 13563 requires agencies to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible. In its guidance, the Office of Information and Regulatory Affairs (“OIRA”) in the Office of Management and Budget (“OMB”) has emphasized that such techniques may include identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes. For the reasons stated in the preamble, this final regulatory action is consistent with these principles.

Section 6(a) of E.O. 12866 also requires agencies to submit “significant regulatory actions” to OIRA for review. OIRA has determined that this final regulatory action does not constitute a “significant regulatory action” under section 3(f) of E.O. 12866. Accordingly, this action was not submitted to OIRA for review under E.O. 12866.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) requires preparation of a final regulatory flexibility analysis (FRFA) for any final rule where the agency was first required by law to publish a proposed rule 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 (August 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: energy.gov/gc/office-general-counsel.

DOE has recently conducted a focused inquiry into small business manufacturers of the MHLFs covered by this rulemaking. DOE used available public information to identify potential small manufacturers. DOE accessed the Compliance Certification Database  14 to create a list of companies that import or otherwise manufacture the MHLFs covered by this proposal.

The Small Business Administration (“SBA”) considers a business entity to be a small business, if, together, with its affiliates, it employs less than a threshold number of workers specified in 13 CFR part 121. These size standards and codes established by the North American Industry Classification System (“NAICS”) and are available at https://www.sba.gov/document/support—table-size-standards. Metal halide lamp ballast manufacturing is classified under NAICS 335311, “Power, Distribution, and Specialty Transformer Manufacturing.” The SBA sets a threshold of 750 employees or fewer for an entity to be considered as a small business for this category. MHLF manufacturing is classified under NAICS 335122, “Commercial, Industrial, and Institutional Electric Lighting Fixture Manufacturing.” The SBA sets a threshold of 500 employees or less for an entity to be considered as a small business for this category.

To estimate the number of companies that could be small businesses that manufacture these ballasts, DOE conducted a market survey using publicly available information. DOE's research involved reviewing information provided by trade associations ( e.g., the National Electrical Manufacturers' Association), information from individual company websites, market research tools ( i.e., Hoover's reports) and DOE's certification and compliance database. DOE screened out companies that do not meet the definition of a “small business” or are completely foreign owned and operated. DOE identified five small businesses that produce metal halide lamp ballasts sold in the United States and can be considered small business manufacturers. For MHLFs, DOE identified approximately 54 small businesses that produce MHLFs sold in the United States and can be considered small business manufacturers.

In the July 2021 NOPR, DOE tentatively concluded that the proposed amendments would not increase the industry cost of the existing test procedure (see section III.H) and would not have a “significant economic impact on a substantial number of small entities,” so the preparation of an IRFA is not warranted. 86 FR 37069, 37082.

DOE received no comments on the impacts of the test procedure amendments proposed in the NOPR on small businesses.

Therefore, DOE concludes that the cost effects accruing from the final rule would not have a “significant economic impact on a substantial number of small entities,” and that the preparation of a FRFA is not warranted. DOE has submitted a certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the Small Business Administration for review under 5 U.S.C. 605(b).

Manufacturers of MHLFs 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 MHLFs. ( 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 35 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. DOE is not amending the certification or reporting requirements for MHLFs in this final rule.

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.

In this final rule, DOE establishes test procedure amendments that it expects will be used to develop and implement future energy conservation standards for MHLFs. DOE has determined that this rule falls into a class of actions that are categorically excluded from review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ) and DOE's implementing regulations at 10 CFR part 1021. Specifically, DOE has determined that adopting test procedures for measuring energy efficiency of consumer products and industrial equipment is consistent with activities identified in 10 CFR part 1021, appendix A to subpart D, A5 and A6. Accordingly, neither an environmental assessment nor an environmental impact statement is required.

Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999), imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. 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 examined this final rule and determined that it will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the products that are the subject of this final 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, this final 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 regulatory action resulting 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 www.energy.gov/gc/office-general-counsel. DOE examined this final 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 final rule will 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 will 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). Pursuant to OMB Memorandum M-19-15, Improving Implementation of the Information Quality Act (April 24, 2019), DOE published updated guidelines which are available at www.energy.gov/sites/prod/files/2019/12/f70/DOE%20Final%20Updated%20IQA%20Guidelines%20Dec%202019.pdf. DOE has reviewed this final 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 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 significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use if the regulation is implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.

This regulatory action is not 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 Federal Trade Commission (“FTC”) concerning the impact of the commercial or industry standards on competition.

The modifications to the test procedure for MHLFs adopted in this final rule incorporates testing methods contained in certain sections of the following commercial standards:

(1) American National Standards Institute (“ANSI”) C78.43 (ANSI C78.43-2017), “American National Standard for Electric Lamps—Single-Ended Metal Halide Lamps,” approved December 21, 2017.

(2) ANSI C78.44 (ANSI C78.44-2016), “American National Standard for Electric Lamps—Double-Ended Metal Halide Lamps,” approved July 1, 2016.

(3) ANSI C82.6-2015 (R2020) (ANSI C82.6-2015 (R2020)), “American National Standard for Lamp Ballasts—Ballasts for High-Intensity Discharge Lamps—Methods of Measurement,” approved March 30, 2020.

(4) ANSI C82.9 (ANSI C82.9-2016), “American National Standard for Lamp Ballasts—High-Intensity Discharge and Low-Pressure Sodium Lamps—Definitions,” approved July 12, 2016.

(5) International Electrotechnical Commission (“IEC”) 63103 (IEC 63103), “Lighting Equipment—Non-Active Mode Power Measurement” (Edition 1.0, 2020-07).

DOE has evaluated these standards 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 has consulted with both the Attorney General and the Chairman of the FTC about the impact on competition of using the methods contained in these standards and has received no comments objecting to their use.

As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of this rule before its effective date. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 804(2).

In this final rule, DOE incorporates by reference the test standard published by ANSI, titled “American National Standard for Electric Lamps—Single-Ended Metal Halide Lamps,” ANSI C78.43-2017. ANSI C78.43-2017 is an industry accepted test standard that specifies the physical and electrical requirements for single-ended metal halide lamps operated on 60 Hz ballasts. Specifically, the test procedure codified by this final rule references ANSI C78.43-2017 for characteristics of reference lamps that must be used when testing metal halide lamp ballasts. ANSI C78.43-2017 is readily available on ANSI's website at webstore.ansi.org/.

In this final rule, DOE also incorporates by reference the test standard published by ANSI, titled “American National Standard for Electric Lamps—Double-Ended Metal Halide Lamps,” ANSI C78.44-2016. ANSI C78.44-2016 is an industry accepted test standard that sets forth the physical and electrical requirements for double-ended metal halide lamps operated on 60 Hz ballasts. Specifically, the test procedure codified by this final rule references ANSI C78.44-2016 for characteristics of reference lamps that must be used when testing metal halide lamp ballasts. ANSI C78.44-2016 is readily available on ANSI's website at webstore.ansi.org/.

In this final rule, DOE also incorporates by reference the test standard published by ANSI, titled “American National Standard for Lamp Ballasts—Ballasts for High-Intensity Discharge Lamps—Methods of Measurement,” ANSI C82.6-2015 (R2020). ANSI C82.6-2015 (R2020) is an industry accepted test standard that describes the procedures and the precautions to be taken in measuring performance of low-frequency ballasts (electromagnetic and electronic ballasts that operate at less than 400 Hz) for HID lamps. Specifically, the test procedure codified by this final rule references Sections of ANSI C82.6-2015 (R2020) for general testing conditions and methods for the measurement of ballast operating characteristics. ANSI C82.6-2015 (R2020) is readily available on ANSI's website at webstore.ansi.org/.

In this final rule, DOE also incorporates by reference the test standard published by ANSI, titled “American National Standard for Lamp Ballasts—High-Intensity Discharge and Low-Pressure Sodium Lamps—Definitions,” ANSI C82.9-2016. ANSI C82.9-2016 is an industry accepted standard that provides definitions related to specific terms related to HID lamps and ballasts. Specifically, the test procedure codified by this final rule references ANSI C82.9-2016 for defining reference lamps which are used when testing metal halide lamp ballasts. ANSI C82.9-2016 is readily available on ANSI's website at webstore.ansi.org/.

In this final rule, DOE also incorporates by reference the test standard published by IEC, titled “Lighting Equipment—Non-Active Mode Power Measurement (Edition 1.0, July 2020),” IEC 63103:2020. IEC 63103:2020 is an industry accepted standard that describes measurements of electrical power consumption in standby mode, off mode, and networked standby mode for lighting equipment. Specifically, the test procedure codified by this final rule references Section 5.4 of IEC 63103:2020 for testing standby mode energy consumption of metal halide lamp ballasts. IEC 63103:2020 is readily available on IEC's website at webstore.ansi.org.

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

This document of the Department of Energy was signed on June 17, 2022, by Kelly J. Speakes-Backman, Principal Deputy Assistant Secretary for 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 amends part 431 of chapter II of title 10, Code of Federal Regulations as set forth below:

The Bureau is adopting several amendments to Regulation V to implement new section 605C of the Fair Credit Reporting Act (FCRA), 1 added by the National Defense Authorization Act for Fiscal Year 2022 (2022 NDAA). 2 In brief, section 605C provides that a consumer reporting agency may not furnish a consumer report containing any adverse item of information concerning a consumer that resulted from a severe form of trafficking in persons or sex trafficking if the consumer has provided trafficking documentation to the consumer reporting agency. 3 Under section 605C, the Bureau is required to issue implementing regulations within 180 days of the enactment of the 2022 NDAA. Section 605C is effective 30 days after the Bureau issues its final implementing regulations.

The Bureau is amending Regulation V as follows:

• Create new section 1022.142 in subpart O, the subpart on miscellaneous duties of consumer reporting agencies, to add the provisions implementing section 605C;

• Apply the new section to any “consumer reporting agency” as defined in section 603(f) of the FCRA, namely nationwide consumer reporting agencies, nationwide specialty consumer reporting agencies, and all other consumer reporting agencies;

• Define terms including, in particular, “trafficking documentation,” “severe forms of trafficking in persons,” “sex trafficking,” and “victim of trafficking”;

• Clarify that “trafficking documentation” includes certain determinations made by a non-governmental organization or member of a human trafficking task force when authorized by a Federal, State, or Tribal governmental entity, and that, for purposes of the new section, documentation by a State governmental entity includes documentation at both the State and local level;

• Permit a consumer to self-attest as a victim of trafficking if the document or an accompanying document is signed or certified by a Federal, State, or Tribal governmental entity, a court of competent jurisdiction, or the representatives of these entities;

• Clarify that a document filed in a court of competent jurisdiction is an acceptable determination that a consumer is a victim of trafficking where: (1) a central issue in the case is whether the consumer is a victim of trafficking; and (2) where the court has conducted an initial review of the victim's claim for purposes of a motion to dismiss or motion for summary judgment and the result is in favor of the victim; and

• Establish procedures explaining how consumers should submit the required documentation to consumer reporting agencies, what actions a consumer reporting agency must perform when it receives that documentation, the limited circumstances under which a consumer reporting agency may ask for additional information, written policies and procedures, and recordkeeping requirements to monitor compliance.

According to the United States Department of State (State Department), in the United States human traffickers compel victims to engage in commercial sex and to work in legal and non-legal industries and sectors, including, for example, agriculture, janitorial services, construction, landscaping, restaurants, factories, child care, care for persons with disabilities, domestic work, salon services, massage parlors, peddling and begging, and drug smuggling and distribution. 4 As the State Department has noted, it is difficult to find reliable statistics related to human trafficking for a number of reasons, including the hidden nature of the crime and barriers to identifying victims of trafficking and sharing information about them. 5

Congress enacted the first significant Federal legislation addressing human trafficking in 2000. The Trafficking Victims Protection Act of 2000  6 (TVPA) established the “three Ps” framework for combating human trafficking by providing increased protections for victims, enhanced tools to prosecute perpetrators of trafficking, and additional resources for prevention. 7 Among other things, the TVPA added new criminal provisions prohibiting “severe forms of trafficking in persons.” This term includes two components of human trafficking defined to include sex trafficking of children or by force, fraud, or coercion of adults, as well as forced labor trafficking with respect to involuntary servitude, peonage, debt bondage, or slavery, commonly referred to as “sex trafficking” and “labor trafficking,” respectively. 8 Since 2000, Congress has reauthorized the TVPA on several occasions and continued to dedicate additional tools and resources to the fight against trafficking on a regular basis, including the creation and funding of the National Human Trafficking Hotline. 9

Efforts by the United States Government to respond to the needs of victims of trafficking recognize that victims have both immediate and longer-term needs, including the need to improve financial stability to support their long-term independence. 10 Adverse consumer report information resulting from having been trafficked can reduce the ability of victims  11 to take basic steps to obtain housing and employment and to move toward greater financial stability and independence.

The FCRA, enacted in 1970 and significantly amended in 1996, 2003, 2010, and 2018, regulates consumer reporting. It was enacted to protect consumers by preventing the transmission of inaccurate information in consumer reports and establishing confidential and responsible credit reporting practices. 12 The FCRA's statutory scheme was designed to ensure that consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce in a manner which is fair and equitable to consumers and protects the confidentiality, accuracy, relevancy, and proper utilization of consumer information. 13

Together with its implementing regulation, Regulation V, 14 the FCRA creates a regulatory framework for furnishing, using, and disclosing information in reports associated with credit, insurance, employment, and other decisions made about consumers. In doing so, the FCRA and Regulation V impose obligations on entities that qualify as “consumer reporting agencies.” They also impose obligations on those who use consumer report information or furnish information to consumer reporting agencies (furnishers).

Section 6102 of the 2022 NDAA amended the FCRA by inserting a new section 605C, based on an earlier bill known as the Debt Bondage Repair Act. 15 Section 605C(b) provides that a consumer reporting agency may not furnish a consumer report containing any adverse item of information concerning a consumer that resulted from a severe form of trafficking in persons or sex trafficking if the consumer has provided trafficking documentation to the consumer reporting agency. As described in more detail in the section-by-section analysis below, section 605C(a) provides statutory definitions for a number of the terms, including from the TVPA. Section 605C(c)(1) directs the Bureau to issue implementing rules within 180 days of enactment, and section 605C(c)(2) mandates that the rules must establish a method by which consumers must submit trafficking documentation to consumer reporting agencies.

On April 8, 2022, the Bureau published a proposed rule in the Federal Register to implement section 605C. 16 The comment period ended on May 9, 2022. In response to the proposal, the Bureau received over 60 comments from survivors of trafficking, consumers, consumer groups, anti-trafficking advocacy groups, industry trade associations, and others.

Many commenters expressed general support for the proposed rule, discussing, for example, the importance of section 605C's goal of helping victims of trafficking recover financially. Some commenters expressed general support for the proposed rule and stated that they believed the proposal would help victims regain access to credit, employment, housing, bank accounts, utilities, and other services. The Bureau also received requests from commenters to alter, clarify, or remove specific provisions of the proposed rule, with some comments focusing on issues relating to potential fraud or abuse and others focusing on revisions that would permit more consumers to take advantage of the proposed amendments. As discussed in more detail below, the Bureau has considered these comments in adopting this final rule.

The Bureau is issuing this final rule pursuant to its authority under the FCRA, the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), 17 and section 6102 of the 2022 NDAA.

Section 1022(b)(1) of the Dodd-Frank Act authorizes the Bureau to prescribe rules as may be necessary or appropriate to enable the Bureau to administer and carry out the purposes and objectives of the Federal consumer financial laws, and to prevent evasions thereof. 18 Effective July 21, 2011, section 1061 of the Dodd-Frank Act transferred to the Bureau the rulemaking and certain other authorities of the Federal Trade Commission (FTC) and the prudential banking regulators ( i.e., the Board of Governors of the Federal Reserve System (FRB), the Federal Deposit Insurance Corporation (FDIC), the National Credit Union Administration (NCUA), and the Office of the Comptroller of the Currency (OCC)) relating to specific “enumerated consumer laws” listed in the Dodd-Frank Act, including most rulemaking authority under the FCRA. 19 Likewise, section 1088 of the Dodd-Frank Act made conforming amendments to the FCRA, transferring rulemaking authority under much of the FCRA to the Bureau. 20 As amended by the Dodd-Frank Act, section 621(e) of the FCRA authorizes the Bureau to issue regulations as may be necessary or appropriate to administer and carry out the purposes and objectives of the FCRA, and to prevent evasions thereof or to facilitate compliance therewith. 21 The Bureau is issuing this final rule pursuant to its authority under § 1022(b)(1) of the Dodd-Frank Act and section 621(e) of the FCRA.

Section 6102(a) of the 2022 NDAA directs the Bureau to issue a rule implementing the new section 605C. Section 6102(c) provides that the rule issued to implement section 605C shall be limited to preventing a consumer reporting agency from furnishing a consumer report containing any adverse item of information about a consumer (as such terms are defined, respectively, in section 603 of the FCRA (15 U.S.C. 1681a)) that resulted from trafficking.

The Bureau proposed to apply the requirement to prohibit the furnishing of adverse items of information about victims of trafficking to any “consumer reporting agency” as defined in section 603(f), as directed by section 6102(c) of the 2022 NDAA. Consistent with section 6102(c) of the 2022 NDAA, the Bureau proposed to apply new § 1022.142 to any “consumer reporting agency” as defined in section 603(f) of the FCRA. Thus, consistent with section 603(f), the requirement prohibiting a consumer reporting agency from furnishing any adverse items of information about a consumer that resulted from a severe form of trafficking in persons or sex trafficking applies to all consumer reporting agencies, including the nationwide consumer reporting agencies, nationwide specialty consumer reporting agencies, and all other consumer reporting agencies such as those focused on employment screening, tenant screening, check and bank screening, personal property insurance, medical, low-income and subprime, supplementary reports, utilities, retail, and gaming. 22

A few commenters addressed the proposed scope. Consumer advocate commenters generally supported applying the requirement to all consumer reporting agencies. However, one industry commenter suggested that the final rule should provide an exception for resellers, as defined by section 603(u) of the FCRA, that do not maintain a consumer file, similar to the exception from the requirement to block information resulting from identity theft in section 605B(d) of the FCRA. The commenter reasoned that these resellers do not maintain a file on consumers and, therefore, do not have the means to block such information for use in future consumer reports.

For the reasons discussed below, the Bureau is finalizing § 1022.142(a) as proposed. Section 6102(c) of the NDAA provides that any rule issued by the Bureau to implement section 605C applies to all consumer reporting agencies. Unlike the identity theft provision identified by the commenter, 23 the FCRA does not except or exempt any types of consumer reporting agencies from this prohibition. Even if a reseller does not maintain a file on consumers, if the reseller has received a request to block information from a consumer, the reseller can comply by ensuring that any consumer report it provides does not contain items of adverse information requested by the consumer to be blocked. Thus, the Bureau declines to provide exceptions for any types of consumer reporting agencies.

Section 605C is silent regarding whether and how consumers must establish their identity when submitting trafficking documentation to a consumer reporting agency. The Bureau proposed to define “appropriate proof of identity” as proof of identity that meets the requirements in § 1022.123. 24 This section, which concerns proof of identify for consumers regarding identity theft, fraud and active duty alerts, consumer report information blocks, and truncation of Social Security numbers, provides that consumer reporting agencies must develop and implement reasonable requirements specifying what information consumers must provide to constitute proof of identity.

The Bureau received several comments supporting the proposed approach. Multiple commenters observed that trafficking survivors often lack documentation that is frequently requested for proof of identity, such as a driver's license, bank account statements, or utility bills. Two commenters observed that many victims of trafficking may make use of State-run address confidentiality programs, which shield the actual addresses of victims of certain offenses in public records. 25 For these reasons, several commenters insisted on the importance of requiring consumer reporting agencies to accept non-documentary means of proof of identity.

A small number of comments recommended alterations to the definition. Some individual consumers and consumer groups called for the Bureau to describe a universal method to ensure all consumer reporting agencies are held to the same standard when identifying victims and proposed that the Bureau mandate the use of alternative methods of identification validation. One commenter stated that the Bureau should clarify Regulation V or provide other guidance to prohibit excessive requirements for identification in order to ensure that Congress's intent to protect trafficking survivors is not undermined. This commenter emphasized that consumer reporting agencies currently demand unnecessary amounts of identification or reject a consumer's proof for minor discrepancies, and that these demands are not commensurate with the risk of harm arising from misidentifying the consumer. Additionally, another consumer group suggested providing consumer reporting agencies with a safe harbor for reasonable proof of identity procedures to offset the adoption of conservative and inflexible procedures to mitigate criticism consumer reporting agencies are not rigorous enough in their proof of identity standards.

For the reasons discussed below, the final rule adopts § 1022.142(b)(1) as proposed, with additional clarifying text. Given the particular needs and challenges of consumers, a universal, one-size-fits-all standard specified in detail by the Bureau may not be a workable solution. Section 1022.123 of Regulation V requires consumer reporting agencies to develop and implement “reasonable” requirements for what information consumers shall provide to constitute proof of identity that are sufficient to enable the consumer reporting agency to match consumers with their files and adjust the information to be commensurate with an identifiable risk of harm arising from misidentifying consumers. Section 1022.123 describes these requirements with respect to section 605A (identity theft prevention and fraud and active duty alerts), section 605B (consumer report information blocks), and section 609(a)(1) (truncation of Social Security numbers) of the FCRA. The final rule clarifies that, as used in § 1022.142, the requirements in § 1022.123 should be applied for purposes of section 605C.

The Bureau recognizes that the reasonableness of proof of identity requirements depends on the context and may differ between consumers trying to resolve problems caused by, for example, identity theft and those who are victims of trafficking. The Bureau also recognizes the importance of matching consumers who are victims of trafficking with their files and adjusting information to be commensurate with an identifiable risk of harm arising from misidentifying the consumer. Accordingly, the Bureau is clarifying that the requirements in § 1022.123 should be used for purposes of section 605C and tailored to the needs of victims of trafficking for purposes of establishing a consumer's identity. The Bureau expects consumer reporting agencies to explore and implement a risk-based approach to verifying a consumer's identity through both “documentary”  26 and “non- documentary” means. 27 The Bureau will also monitor the identification procedures for victims of trafficking to ensure consumer reporting agencies are not applying excessive requirements for identification and that the standards protect the confidentiality and personal safety of survivors. Moreover, appropriate proof of identity for the purposes of this section requires consumer reporting agencies to develop reasonable requirements for victims of trafficking, recognizing the challenges many victims might face in establishing proof of identity by conventional methods used for other purposes. The Bureau expects consumer reporting agencies to develop standards specific to victims of trafficking such that Congress's intent to protect survivors of trafficking is not undermined.

Proposed § 1022.142(b)(2) defined the term “consumer report” to have the same meaning as that provided in section 603(d) of the FCRA. The use of this definition is directed by section 6102(c) of the 2022 NDAA which provides that the Bureau's rule shall be limited to preventing a consumer reporting agency from furnishing a consumer report containing any adverse item of information about a consumer that resulted from trafficking as the terms are defined in section 603 of the FCRA.

The Bureau did not receive any comments on proposed § 1022.142(b)(2) and is finalizing it as proposed.

Proposed § 1022.142(b)(3) defined “consumer reporting agency” to have the meaning provided in section 603(f) of the FCRA. The use of this definition is directed by section 6102(c) of the 2022 NDAA.

The Bureau did not receive any comments on proposed § 1022.142(b)(3) and is finalizing it as proposed.

Proposed § 1022.142(b)(4) adopted the definition of “severe forms of trafficking in persons” set forth in section 605C(a)(2) from section 103 of the TVPA. 28 Under that definition, the term “severe forms of trafficking in persons” means:

(i) Sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age; or

(ii) The recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.

The language in the first paragraph of this definition is commonly referred to as the “sex trafficking” component, and the language in the second paragraph is commonly referred to as the “labor trafficking” component. 29

The Bureau received few comments on this proposed definition. 30 One consumer group stated that there may be circumstances where this definition is overly narrow, arguing that all forms of trafficking in persons or sex trafficking should be included as “severe forms of trafficking in persons.”

The Bureau is finalizing this definition as proposed. Section 605C(a)(2) provides that the term “severe forms of trafficking in persons” has the meaning given in section 103 of the TVPA, which is the definition set out above and in the proposed rule. Consistent with the statute, the Bureau is adopting this definition in the final rule.

Proposed § 1022.142(b)(5) adopted the definition of “sex trafficking” set forth in section 605C(a)(2). 31 Under that definition, the term “sex trafficking” means the recruitment, harboring, transportation, provision, obtaining, patronizing, or soliciting of a person for the purpose of a commercial sex act.

The Bureau received one comment on this definition which is discussed in the section-by-section analysis of § 1022.142(b)(7) below.

Section 605C(a)(1) defines “trafficking documentation” as documentation of—a determination that a consumer is a victim of trafficking, made by a Federal, State, or Tribal governmental entity, or—by a court of competent jurisdiction and documentation that identifies items of adverse information that should not be furnished by a consumer reporting agency because the items resulted from a severe form of trafficking in persons or sex trafficking of which the consumer is the victim. The Bureau proposed to incorporate this statutory definition with certain modifications regarding documentation identifying a consumer who is a victim of trafficking involving a “court of a competent jurisdiction.” Proposed § 1022.142(b)(6)(i) described documentation requirements for a determination that a consumer is a victim of trafficking (victim determination) and proposed § 1022.142(b)(6)(ii) described documentation requirements for identified adverse items of information. Accordingly, the Bureau is naming § 1022.142(b)(6)(i) as “victim determination” and § 1022.142(b)(6)(ii) as “identified adverse items of information” to make it clear that “trafficking documentation” under section 605C consists of two components: victim determinations and identified adverse items of information. Each component is discussed in the section-by-section analysis below.

Section 605C(a)(1)(A)(i) provides the term “trafficking documentation” means documentation of—a determination that a consumer is a victim of trafficking made by a Federal, State, or Tribal governmental entity. The Bureau proposed to adopt this statutory definition of “trafficking documentation.” Under this definition, a determination made by a Federal, State, or Tribal governmental entity in the form of documentation that a consumer is a victim of trafficking would have satisfied the requirements in proposed § 1022.142(b)(6)(i)(A). As noted in the proposed rule, the Bureau found through outreach that documentation directly identifying a person as a victim of trafficking is scarce and is primarily limited to foreign-born persons, a fact echoed by many commenters. 32 The Bureau also learned that victims of trafficking are often not identified and thus many victims will not have documentation directly determining that they are a victim of trafficking. For these reasons, as discussed further below, the Bureau sought comment on multiple possible ways a consumer might be able to document a determination by a governmental entity that a consumer is a victim of trafficking.

The Bureau has considered the comments and is adopting § 1022.142(b)(6)(i)(A), with revisions to provide that victim determinations include those made by certain non-governmental entities and human trafficking task forces authorized by a Federal, State, or Tribal governmental entity to make such determinations and that documentation by a “State governmental entity” includes documentation at both the State and local level.

Non-Governmental Organizations and Other Non-Governmental Sources. In the proposed rule, the Bureau noted programs in which government agencies grant money to certain organizations to assist victims of trafficking. The Bureau discussed how, for example, the Office for Victims of Crime (OVC) in the Department of Justice (DOJ) is the largest Federal funder of services for human trafficking victims in the United States. 33 However, the Bureau understands this office does not make or document determinations as to who is a victim of trafficking. Instead, non-governmental organizations that receive grants from the OVC to provide services to clients make determinations that individuals are victims of trafficking, in some cases even when the person does not self-identify as a victim. 34 The Bureau sought comments about whether and how such non-governmental sources of information might be considered in making a determination that a consumer is a victim of trafficking under section 605C. Specifically, the Bureau asked for comments on whether entities that receive funding from a governmental entity, and are subject to the terms and conditions of a government program, may provide documentation in the form of a determination identifying a person as a victim of trafficking that would satisfy section 605C(a)(1)(A).

Commenters were largely in favor of treating determinations that individuals are victims of trafficking made by non-governmental sources receiving government money as determinations made by a governmental entity, with few exceptions. One consumer group commenter suggested that the Bureau should broaden the allowable categories of documentation to show that the consumer is a trafficking survivor. The commenter suggested that the Bureau promulgate a definition that includes documentation from government-funded organizations under section 605C itself, or that the Bureau use its broad general rulemaking authority under section 621(e) to prescribe regulations as may be necessary or appropriate to administer and carry out the purposes and objectives of the FCRA. The commenter observed that trained professionals who work in these organizations are generally in the best position to speak with a client, understand their personal background and history, and assess whether the consumer is a victim of trafficking. An anti-trafficking advocacy group commenter stated that trafficking survivors may have no or extremely limited interactions with government agency personnel since trafficking-specific services are primarily outsourced to non-governmental organizations rather than administered by government agencies in the United States and that social service providers at non-governmental agencies regularly conduct trafficking assessments and are often better positioned to identify trafficking survivors.

An industry group commenter agreed with the Bureau's preliminary assessment discussed in the proposed rule that non-governmental sources might be best suited to provide support for a determination that a consumer is a victim as compared to a government agency or a court. However, the commenter noted the risk for potential fraud and suggested that the Bureau be cognizant of the fraudulent use of identity theft reports under section 605B of the FCRA. The commenter suggested that if the Bureau were to include determinations made by non-governmental entities it should require that the entities be legitimate non-profit organizations supported by government funding subject to the terms and conditions of a government program and that these entities submit trafficking documentation in good faith on behalf of a victim with the permission and knowledge of the victim. The commenter further suggested that consumer reporting agencies should be provided with a way to verify that the entity is a legitimate non-profit organization and has the victim's permission to act on the victim's behalf by, for example, requiring these non-governmental sources to provide notice to the Bureau which could be used by a consumer reporting agency for verification purposes.

An individual commenter who regularly provides legal representation to victims of trafficking encouraged the Bureau to include human trafficking task force members  35 as entities that can provide a determination that a consumer is a victim of trafficking. The commenter stated that governmental entity personnel do not typically work directly with a consumer in the context of their victimization and that task force members—who usually include service providers that regularly screen and work closely with victims to provide housing, medical care, financial assistance, counseling, legal aid, and other recovery services—may be better positioned to attest to a consumer's victim status.

A national membership group representing prosecutors asked the Bureau to provide a broad definition of “trafficking documentation” to encompass victims who may not yet have come into contact with the criminal justice system or with an appropriate service provider. The commenter recommended the Bureau allow for documentation that applies to instances when a victim may receive mental or medical care or evidence the person has been identified by law enforcement as a victim of trafficking in an investigation. This commenter noted that the burden of verifying the documented victim determinations should lie with the consumer reporting agency as the entity reviewing the consumer request to ensure that such victim service provider or law enforcement agency was in contact with the individual victim and stated the Bureau or the appropriate consumer reporting agency should ensure the identification of the victim is authentic.

One anti-trafficking advocacy group commenter that receives grants from State and Federal programs suggested that a statement from a grantee organization confirming that a consumer seeking relief under this rule is receiving services as a human trafficking victim should qualify as a determination that the consumer is a victim of trafficking. This commenter also urged the Bureau to provide that documented referrals by a government entity to a program providing specialized services to human trafficking survivors should similarly qualify as documentation of trafficking victimization.

One sex workers and anti-trafficking advocacy group stated that non-governmental organizations should not be required to prepare certifications to be signed by governmental funding entities, because these organizations are not generally required to disclose the identity of victims and this would raise confidentiality concerns. This commenter mentioned that non-governmental organizations may be prohibited from providing a determination that a consumer is a victim of trafficking because of pre-existing statutory language concerning restrictions on certifications of United States citizens or lawful permanent residents who are victims of severe forms of trafficking. 36 A large banking industry trade group did not specifically oppose including documentation from non-governmental entities receiving governmental funding, but recommended the Bureau advocate for the development of a compassionate and reliable means of providing documentation set forth in section 605C.

The Bureau is finalizing § 1022.142(b)(6)(i)(A) with certain modifications. The Bureau finds the definition of “trafficking documentation” includes a determination made by a Federal, State, or Tribal governmental entity and is adopting this definition by renumbering § 1022.142(b)(6)(i)(A) to § 1022.142(b)(6)(i)(A)( 1 ) for these governmental entities. The reference to a court of competent jurisdiction has been moved to § 1022.142(b)(6)(i)(B), as discussed below in the section-by-section analysis.

The Bureau created new § 1022.142(b)(6)(i)(A)( 2 ) to clarify that trafficking documentation includes a determination that a consumer is a victim of trafficking made by a non-governmental organization or member of a human trafficking task force, including victim service providers affiliated with the organization or task force, when authorized by a Federal, State, or Tribal governmental entity to make such a determination.

The Bureau agrees that trained professionals providing services to victims of trafficking, including those affiliated with a trafficking task force, are often best suited to identify and make determinations that a person has been or is being trafficked. 37 The Bureau understands that Federal, State, and Tribal governmental entities often rely on the expertise these non-governmental organizations—including multi-disciplinary human trafficking forces—possess in making victim determinations. For instance, as of fiscal year 2020, there were over 47 multi-disciplinary trafficking task forces using an enhanced collaborative model to combat human trafficking. 38 OVC and the Bureau of Justice Assistance in the DOJ use this model to: (1) employ victim-centered approaches to identifying trafficking survivors; (2) provide services to victims of all forms of human trafficking; and (3) investigate and process all forms of trafficking. These task force stakeholders are usually law enforcement, prosecutors, victim services providers, and others at the local, State, and Federal levels, 39 who work with victim service providers affiliated with the task forces to provide services to victims of trafficking such as counseling, housing, referral to medical services, and financial assistance. 40 Typically, victims of trafficking are referred to victim service providers for services from medical providers, other victim service providers, law enforcement, and community organizations and members. Often these victim service providers will conduct an initial screening and assessment to determine whether the person has experienced human trafficking followed by performing a victim-centered comprehensive assessment used to identify services and assistance programs. Under this model, non-governmental organizations or members in a human trafficking task force could provide an individual with a documented determination after an initial screening and assessment if authorized to do so by a Federal, State, or Tribal governmental entity.

The Bureau concludes that the purpose of section 605C—to help survivors of human trafficking restore their credit and gain access to consumer financial products and services—is better served by providing in the final rule that non-governmental organizations and members in a human trafficking task force, including service providers affiliated with these entities, may make determinations that a consumer is a victim of trafficking if authorized to do so by a Federal, State, or Tribal governmental entity. This means that where a Federal, State, or Tribal governmental entity has authorized non-governmental organizations or members in a human trafficking task force to make a determination that a consumer is a victim of trafficking, documentation of that determination by one of these entities satisfies the trafficking documentation definition under § 1022.142(b)(6)(i)(A). The Bureau interprets the authorization by Federal, State, or Tribal governmental entities as having effectively delegated authority to these non-governmental organizations and human trafficking task forces along with service providers affiliated with these entities. The Bureau concludes that victim determinations made by a non-governmental organization, human trafficking task force, or a non-governmental-affiliated victim service provider in the form of identifying an individual as a victim of trafficking must be accepted by consumer reporting agencies if authorized to make such a determination by a Federal, State, or Tribal governmental entity.

The final rule does not limit Federal, State, and Tribal governmental entities to authorizing only those non-governmental entities and human trafficking task forces that receive funding from these governmental entities. Nor does the final rule prescribe how a Federal, State, or Tribal governmental entity may authorize non-governmental organizations to make victim determinations, but certain factors such as whether non-governmental organizations and human trafficking task forces receive government funding and are subject to the terms and conditions of a government program could be a factor evaluated by a governmental entity. To clarify, the final rule does not permit a non-governmental entity or human trafficking task force to provide an authorization to make a victim determination under this section for itself or another entity. Instead, the authorization must be made by a Federal, State, or Tribal governmental entity, and each governmental entity may establish their own criteria for making such authorizations. The Bureau has concluded that victim determinations made by a non-governmental organization, human trafficking task force, or victim service provider affiliated with an organization or task force must be accepted by consumer reporting agencies if the entity has been authorized to make such a determination by a Federal, State, or Tribal governmental entity.

The Bureau understands there may be concerns with non-governmental organizations or members of human trafficking task forces, including affiliated victim service providers, providing attestations or certifications to be signed by these entities because doing so may raise confidentiality concerns and these entities are not generally required to disclose the identity of victims. The final rule does not require governmental entities or non-governmental organizations to submit such documentation. Rather, the final rule permits a consumer to submit a victim determination from a governmental entity or a non-governmental organization or human trafficking task force authorized by a governmental entity in order to block adverse items of information that resulted from a severe form of trafficking in persons or sex trafficking. Moreover, under the final rule the decision to obtain a victim determination is with the victim and the final rule does not require or permit anyone to submit a victim determination to a consumer reporting agency without the permission of the victim.

One commenter questioned whether non-governmental organizations may be prohibited from providing a determination that a consumer is a victim of trafficking because of pre-existing statutory language concerning restrictions on certifications of United States citizens or lawful permanent residents who are victims of a severe form of trafficking in persons. 41 The Bureau does not believe that this provision of the TVPA conflicts with section 605C or the final rule since section 605C, among other things, does not require an official certification from the Department of Health and Human Services (HHS) in order to block adverse items of information from a consumer report that resulted from having been trafficked.

The Bureau is adopting § 1022.142(b)(6)(i)(A) under section 605(c) as well as under its authority under section 621(e) of the FCRA, which authorizes the Bureau to prescribe regulations that promote accuracy and fairness in credit reporting, and under the general rulemaking authority granted the Bureau under § 1022(b)(1) of the Dodd-Frank Act.

State governmental entity. The Bureau proposed treating documentation of a determination that a consumer is a victim of trafficking by a “State governmental entity” as including documentation created at either the State or local level. The Bureau noted that local law enforcement, as part of a local government, may have documentation of a determination identifying victims of trafficking, including, but not limited to, items in a police report. The Bureau noted that there are Federal and State victims' rights acts in addition to Tribal codes that depend on a determination that a victim has been identified as such, including by Federal, State, Tribal, or local jurisdictions. 42 The Bureau also noted that some State laws explicitly contemplate local entities making this determination for victims of sex trafficking which triggers various rights for the victim and obligations for the government under State and Federal law. 43 The Bureau further noted, however, that the local entity may not always share that determination with State, Federal, or Tribal governmental entities and thus that some victims of trafficking would not be able to utilize such documentation.

The Bureau solicited comments on whether it should interpret the phrase “a determination that a consumer is a victim of trafficking made by a Federal, State, or Tribal governmental entity” to mean any determination, including those made by local government officials, where a Federal, State or Tribal governmental entity could reasonably be construed as making a determination that a consumer is a victim of trafficking. The Bureau also sought comments concerning the nature of information on trafficking in the possession of local governments, the extent to which such information is or might usefully be shared with Federal, State, and Tribal governmental entities, and the sort of documentation generated by these governmental entities.

Commenters were largely in favor of including documentation generated by local governmental entities. Specifically, one commenter stated that local governmental entities at all levels, including county and municipal law enforcement and prosecutors, are in as much of a position to identify victims of trafficking as State and Federal government entities. Another commenter agreed with the Bureau's proposed treatment of local governmental entities and stated their belief that a police report could serve as an example of documentation establishing a person as a victim of trafficking. One association of State attorneys general expressed support for the Bureau's proposed interpretation to include both State and local law enforcement agencies as entities that can make determinations of a victim's status under State law because of their collaboration on victim advocacy and enforcement work.

A commenter representing banks expressed concern with treating a local governmental entity as “State governmental entity.” This commenter contended that the Bureau's reference to treating documentation from local law enforcement, such as police reports, as a determination identifying victims of trafficking undermines and is contrary to the intent of the statute providing that consumer reports be accurate and reliable.

The Bureau is finalizing its proposal that documentation of a determination that a consumer is a victim of trafficking made by a “State governmental entity” includes documentation created at either the State or local level. The Bureau finds that local law enforcement, as part of a local government, may have documentation of a determination identifying victims of trafficking, including, but not limited to, items in a police report. This is particularly relevant since there is not a uniform mechanism in place within most governmental entities to provide lawful permanent residents and United States citizens with a certification that a person is a victim of trafficking. In furtherance of assisting survivors of human trafficking in restoring their credit and obtaining access to consumer financial products, and the integral role of local law enforcement in the identification and investigation of sex trafficking, the Bureau concludes that it is imperative for local governments, including local law enforcement, to possess the ability to make documented victim determinations for purposes of this rule. 44 This means victim determinations made by local governmental entities could include victim advocates within local prosecutorial or local law enforcement agencies and offices administering specific services for victims of trafficking, such as address confidentiality programs within State attorney general offices.

The Bureau is concerned that a narrower definition could substantially limit the availability of documentation for victims of trafficking to submit to consumer reporting agencies. Interpreting documentation of a determination that a consumer is a victim of trafficking by a “State governmental entity” to include local government entities will further the statutory goal of preventing consumer reporting agencies from furnishing consumer reports containing adverse items of information about a consumer that resulted from trafficking.

The Bureau agrees with commenters that local law enforcement, as typically the lead investigative agency, is often in the best position to identify victims of sex trafficking. In response to comments and to facilitate compliance, the Bureau interprets final § 1022.142(b)(6)(i)(A)( 1 ) as providing that documented victim determinations made by a local governmental entity must be treated as made by a State governmental entity for purposes of this rule.

In adopting this interpretation, the Bureau concludes that the final rule will promote the purposes of section 605C by ensuring victims are able to block adverse items of information resulting from trafficking and further promote the accuracy and reliability of consumer reports. The Bureau foresees victim determinations made by local governments as likely being initiated by local law enforcement after having interviewed victims of trafficking when receiving referrals (from hotlines, tip lines, other law enforcement agencies, victim service providers, other government agencies), performing sting operations, or conducting routine traffic stops. The Bureau's adoption of this interpretation is further supported by its regulatory authority under section 621(e) of the FCRA, which authorizes the Bureau to prescribe regulations that promote accuracy and fairness in credit reporting, and the general rulemaking authority granted under section 1022(b)(1) of the Dodd-Frank Act.

Section 605C(a)(1)(A)(ii) provides the term “trafficking documentation” means documentation of—by a court of competent jurisdiction. The Bureau stated in the proposal it was incorporating this statutory definition of “trafficking documentation” with certain clarifying interpretations regarding documentation identifying a consumer who is a victim of trafficking involving a “court of competent jurisdiction,” and to clarify that the documentation may consist of one or more documents as long as the collective documentation satisfies the definition. To implement this, the Bureau proposed to include two categories of documentation involving a “court of competent jurisdiction” in the definition of “trafficking documentation.” The first category of documents concerning a “court of competent jurisdiction” is documentation, in the form of a determination, that the consumer is a victim of trafficking made by a court of competent jurisdiction in proposed § 1022.142(b)(6)(i)(A). 45 The second category is documentation consisting of documents filed in a court of competent jurisdiction indicating that a consumer is a victim of trafficking in proposed § 1022.142(b)(6)(i)(B). 46 The Bureau sought comments on whether it should clarify in the regulation what documents filed in a court of competent jurisdiction indicating that a consumer is a victim of trafficking means. For example, the Bureau asked if a filing in a court or a court opinion in which a consumer's status as a victim of trafficking is an accepted fact, but not the central issue in the case, could be considered a “determination” sufficient to satisfy section 605C(a)(1)(A)(ii) and whether such an interpretation would allow more victims of trafficking to make use of the procedure created by section 605C.

Many commenters supported including a broad variety of court documents in the definition, including court documents in which a consumer's status as a victim of trafficking is an accepted fact, but not the central issue in the case. Several industry commenters, however, expressed concern that the approach would permit consumers to block adverse items of information based only on unverified allegations. One commenter stated the indicator of reliability would be significantly higher if the document has to be filed under penalty of perjury, such as verified petitions, affidavits, deposition transcripts, and trial transcripts. Other commenters expressed concerns about perpetrators of crimes using this provision to block accurate criminal record information relied upon by potential employers and landlords.

The Bureau is finalizing § 1022.142(b)(6)(i)(B) by modifying the regulatory text concerning language associated with a court of competent jurisdiction. First, the category of court documentation, in the form of a determination, that the consumer is a victim of trafficking made by a court of competent jurisdiction in proposed § 1022.142(b)(6)(i)(A) is moved to § 1022.142(b)(6)(i)(B). The Bureau believes these court documents could include criminal record relief orders (sealing, expungement, or vacatur of records), civil suit decisions involving human trafficking, and restitution orders. Due to the sensitive nature involving victims of trafficking and because the Bureau does not believe the details surrounding one's victimization must be provided to consumer reporting agencies, consumer reporting agencies must accept these documents with redactions that omit any details that exceed what is sufficient to confirm an individual has been identified as a victim of trafficking.

The second category of court documentation in proposed § 1022.142(b)(6)(i)(B) consisted of documents filed in a court of competent jurisdiction indicating that a consumer is a victim of trafficking. After reviewing the comments, the Bureau is modifying language in proposed § 1022.142(b)(6)(i)(B) to clarify documents filed in a court of competent jurisdiction where a central issue in the case is whether the consumer is a victim of trafficking and the court has, at a minimum, affirmed the consumer's claim either by accepting certain pieces of evidence which are assumed to be true or finding that there is no genuine dispute as to any material fact supporting a judgment in favor of the victim as a matter of law constitutes an acceptable victim determination under section 605C. The Bureau believes this could include instances where victims of trafficking sue their traffickers using private right of action provisions under Federal or State victim protection laws where the court has conducted an initial review of the victim's claim for purposes of a motion to dismiss or motion for summary judgment and the result is in favor of the victim. This approach could also allow more victims the opportunity to obtain a victim determination even in instances where the civil suit was dismissed without prejudice or not pursued because of intimidation by the trafficker against the victim.

The Bureau is not interpreting documentation filed in a court of competent jurisdiction to include court documents filed where the consumer's status as a victim of trafficking is not a central issue in the case. However, the Bureau believes that in many such cases a consumer would be able to provide documentation obtained by other means. For example, court records where a trafficker is being criminally prosecuted for a crime other than for trafficking, but where the consumer is identified as a victim of trafficking would not meet the definition under § 1022.142(b)(6)(i)(B). However, a consumer often may instead be able to obtain a copy of the law enforcement affidavit or other documented statements from a governmental entity or entity with delegated authority from a governmental entity filed in the criminal court proceedings on behalf of the prosecution which would then constitute a victim determination made by a governmental entity under § 1022.142(b)(6)(i)(A).

One of the primary purposes of section 605C is to assist victims of trafficking by restoring their credit and helping them obtain access to consumer financial products and services which will prevent revictimization and place the victims on a path to financial stability. The Bureau is aware that some victims, given the nature of their victimization and subsequent involvement in crimes they were forced to commit as a result of having been trafficked, are apprehensive to interact with and obtain relief from a governmental entity or a court. The Bureau finds that accepting documents filed in a court of competent jurisdiction where the consumer's status as a victim of trafficking is a central issue and the court's actions after an initial review of the consumer's claim passes a level of verification from the court will prevent a consumer reporting agency from furnishing a consumer report containing adverse information about a consumer that resulted from trafficking. This provision of the rule is also supported by the Bureau's regulatory authority under section 621(e) of the FCRA, which authorizes the Bureau to prescribe regulations that promote accuracy and fairness in credit reporting, and on the general rulemaking authority granted the Bureau under section 1022(b)(1) of the Dodd-Frank Act. Therefore, the Bureau concludes that documentation filed in a court of competent jurisdiction where the consumer's status as a victim of trafficking is a central issue and the court has, at a minimum, affirmed the consumer's claim either by accepting certain pieces of evidence which are assumed to be true or finding that the there is no genuine dispute as to any material fact supporting a judgment in favor of the victim as a matter of law satisfies section 605C.

The Bureau is adding § 1022.142(b)(6)(i)(C) to the final rule to provide that a signed statement by the consumer attesting that the consumer is a victim of trafficking is an acceptable victim determination if such statement or an accompanying document is signed or certified by a representative of an entity described in § 1022.142(b)(6)(i)(A) and (B). In the proposed rule, the Bureau did not propose a provision to describe the specific types of documents that could serve as a determination that a consumer is a victim of trafficking. However, the Bureau asked for feedback on whether an attestation or documentation submitted to a Federal, State, or Tribal governmental entity by a person who self-identifies as a victim of trafficking, or by another person or entity acting on that person's behalf, may constitute a documented determination. The Bureau also sought comment on the types of documents that could serve as a “determination that a consumer is a victim of trafficking.” The Bureau stated it has not identified any standard “determination” procedures or forms in use by any governmental entities or courts concerning human trafficking for persons who are not foreign national adults ( i.e., United States citizens or lawful permanent residents).

The Bureau received few comments on whether to include a person's self-attestation as a victim of trafficking or an attestation by another person or entity acting on that person's behalf. One anti-trafficking organization deemed self-attestation the best approach while providing the least restrictions and the most confidentiality. A consumer advocacy group and a group focused on assisting victims of trafficking, domestic violence, and sexual violence requested the Bureau permit self-attestation of trafficking if an authorized third party (such as an employee in a government-funded organization that serves survivors, a government employee, or court personnel) signs off on the self-attestation after performing an interview or assessment. This commenter also suggested that in the alternative, the Bureau could provide that the authorized third party may write a simple attestation/certification identifying the name of the survivor and that the survivor is a victim of trafficking.

An industry group representing banks urged the Bureau to not permit self-attestations for purposes of establishing a consumer is a victim of trafficking. This commenter stated that Congress did not provide for an attestation in section 605C, unlike section 605B in reporting identity theft, and that the text of section 605C requires the victim determinations to be made by a “Federal, State, or Tribal governmental entity.” The commenter also noted that allowing a person to self-attest to being a victim of trafficking or someone acting on their behalf may lead to abuse by permitting persons who fraudulently self-identify as victims of trafficking to block accurate information.

A consumer group and anti-trafficking organization requested the Bureau provide a specific non-exhaustive list of example documents that would prove a consumer is a victim of trafficking. The consumer group stated that if an enumerated list of acceptable documentation is not provided then the rule may not be sufficiently concrete and clear to require the consumer reporting agencies to implement section 605C's protections effectively. The commenter urged the Bureau to clarify that a victim who does not have such documents would still qualify for relief under section 605C by providing alternative forms of documentation. Another commenter recommended the Bureau create a form similar to a declaration of a law enforcement officer used to provide that a person is a victim of trafficking. 47 The commenter also urged the Bureau to create a sample attestation form that can be used by organizations that receive government funding, so that the organizations will have a template document for producing the trafficking documentation required by the rule. An industry group also requested examples of acceptable “victim determinations” and recommended the Bureau issue an interim final rule with an open comment period to allow industry members to continue to provide feedback on this point, which will further help victims in identifying appropriate documentation to be provided to consumer reporting agencies. A commenter representing a group of anti-trafficking organizations stated victims of trafficking should be able to obtain documentation through State human trafficking coordinators or by showing that they have sought a benefit or access to a program that they qualify for on the basis of their victimization ( e.g., crime victim compensation or address confidentiality programs).

The Bureau has considered the comments and is modifying the final rule by permitting a consumer to self-attest as a victim of trafficking if the statement or an accompanying document is signed or certified by a Federal, State, or Tribal governmental entity or court of competent jurisdiction, or representative of an entity authorized by a Federal, State, or Tribal governmental entity or court of competent jurisdiction to provide victim determinations. Specifically, § 1022.142(b)(6)(i)(C) provides that a victim determination includes documentation of a signed statement by the consumer attesting that the consumer is a victim of trafficking if such statement is also signed by a representative of an entity described in § 1022.142(b)(6)(i)(A) or (B). The Bureau concludes that the statute requires only that the consumer provide documentation of a determination that they are a victim of trafficking made by a Federal, State, or Tribal governmental entity or documentation of or by a court of competent jurisdiction. For purposes of submitting trafficking documentation to consumer reporting agencies, consumers are not required to reveal the details of their trafficking to consumer reporting agencies since doing so may cause some consumers to suffer additional harm. Therefore, the Bureau concludes that so long as a self-attestation made by a consumer is supported by a determination made by a Federal, State, or Tribal governmental entity or a court of competent jurisdiction, as described in § 1022.142(b)(6)(i)(A) or (B), it satisfies the trafficking documentation requirement as provided by § 1022.142(b)(6)(i)(C).

The Bureau is finalizing § 1022.142(b)(6)(i) without adding to the text of the regulation a non-exhaustive list of documents that serve as a “determination that a consumer is a victim of trafficking” or a model self-attestation form. However, the Bureau notes that a victim may self-attest by making a statement to the effect that “I attest that I am a victim of trafficking for purposes of section 605C of the Fair Credit Reporting Act. The signature of [NAME], employee of [ORGANIZATION] certifies this statement.” The Bureau believes this approach affords the greatest flexibility to victims of trafficking seeking to gather and submit to consumer reporting agencies the documentation of determinations specified in section 605C(a)(1)(A). The Bureau may consider issuing interpretations in the future that provide specific examples to provide clarity on the types of “determinations” that establish a consumer is a “victim of trafficking,” such as by issuing advisory opinions or consumer education materials. To clarify, the Bureau's decision to not provide an exhaustive list of example documents or a self-attestation form does not mean victims of trafficking should not submit or consumer reporting agencies should not accept certain documents referenced by commenters to establish a victim determination under § 1022.142(b)(6)(i)(A). 48 The Bureau encourages victims of trafficking to utilize pre-existing documentation that may be accessible based on their participation in certain victim assistance programs.

In the proposed rule, the Bureau incorporated section 605(C)(a)(1)(B), the second component of “trafficking documentation,” into proposed § 1022.142(b)(6)(ii). Section 605(C)(a)(1)(B) provides that “trafficking documentation” is documentation that identifies items of adverse information that should not be furnished by a consumer reporting agency because the items resulted from a severe form of trafficking in persons or sex trafficking of which the consumer is a victim.

The Bureau did not propose to prescribe what an “adverse item of information” in a consumer report is, because it may vary depending on the weight each individual user of a consumer report gives to certain items of information as well as the consumer's individual circumstances. The Bureau stated this information could include the evaluation of factors enumerated in section 603(d) of the FCRA on consumer reports such as: credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living. The Bureau also stated that victims of trafficking may wish to have items of information blocked from their consumer report that are the result of trafficking because they do not believe those items accurately reflect them even if the item does not result in, for example, a lower credit score or less favorable evaluation by a user. In the proposed rule, the Bureau provided examples of adverse items of information that include records containing derogatory information, such as payment delinquencies or defaults reported to a consumer reporting agency on a loan or large purchase, records of coerced debt where a loan is taken out by a victim of trafficking under force or threat, records of criminal arrests and convictions, and records of evictions or non-payment of rent.

Consumer and anti-trafficking groups as well as individual commenters largely supported the proposed rule's approach of allowing consumers to determine which items of adverse information resulted from trafficking without requiring further documentation connecting the information to trafficking. Numerous individuals, anti-trafficking, and consumer groups urged the Bureau to permit victims to identify adverse items of information that could have been reported to consumer reporting agencies during and after the period during which a victim was under the control of the trafficker and that resulted from having been trafficked. A consumer group stated that consumer reporting agencies often reject disputes from consumers if a family member, attorney, or third party assists the consumer. This consumer group urged the Bureau to require consumer reporting agencies to accept requests from third parties using a document authorizing the third party to act on a consumer's behalf along with identification of the third party such as a driver's license. An anti-trafficking advocacy group suggested that consumer reporting agencies should be required to identify which information would be deemed adverse and required to block that information since they are likely in a better position to evaluate what is adverse information than the victim of trafficking.

Several industry groups expressed concerns, arguing that a broad, vague definition might lead to inconsistent application by consumer reporting agencies and that certain factual items should not be deemed “adverse items of information,” such as non-expunged criminal records. The commenters also urged the Bureau to require consumers to specify the time period during which they were trafficked and state the reason why each item resulted from trafficking. The commenters also stated that allowing consumers to identify items of adverse information and prohibiting consumer reporting agencies from evaluating whether those identified items resulted from trafficking may permit fraud. These commenters asked the Bureau to consider limiting the ability to submit trafficking documentation resulting from trafficking to the victim, an attorney acting in the capacity as attorney for the victim, or an individual employed by a non-profit counseling agency approved by the Bureau and acting under a power of attorney for the victim in order to avoid potential fraud and requests submitted without the victim's authorization or knowledge.

An industry group commented that a consumer who requests criminal records to be blocked should provide a court order consisting of a determination that a consumer was a victim of a severe form of trafficking in persons at the time the crime was committed. This commenter also encouraged the Bureau to exclude from being blocked information that the consumer has identified as resulting from trafficking where the information being reported relates to the revocation or failure to renew a professional license or certification by a State entity and the reason for the revocation or failure to renew will not be evident from the records. A few industry groups asked the Bureau to create a form to include the adverse items of information along with contact information, a description of the trafficking, list of adverse items with a statement on how each item resulted from trafficking, when the trafficking occurred, and a pre-printed statement that the consumer is making the statement under penalty of perjury.

The Bureau is adopting § 1022.142(b)(6)(ii) with revisions to clarify that, in addition to the consumer, a representative designated by the consumer may identify items of adverse information that should not be furnished by a consumer reporting agency and that the consumer must provide a preferred contact method relating to the consumer's request to block adverse information that resulted from trafficking. The text below in this section-by-section analysis also discusses the Bureau's response to comments asking the Bureau to define what an “adverse item of information” in a “consumer report” is and the request for the Bureau to create a form that a consumer could use to identify adverse information.

The Bureau is revising the text of the rule in § 1022.142(b)(6)(ii) to specifically provide that the documentation, which may consist of a statement prepared by the consumer, identifying adverse items of information may also be prepared by a designated representative on behalf of the consumer. However, the final rule provides that the designated representative cannot be a credit repair organization as defined in section 403(3) of the Credit Repair Organizations Act or an entity that would be a credit repair organization, but for section 403(3)(B)(i) of the Credit Repair Organizations Act. 49 The Bureau notes this approach will reinforce the need for consumer reporting agencies to accept trafficking documentation, as required under § 1022.142(d)(1), from third parties identified as assisting with or acting on behalf of the consumer while acknowledging the concern raised by some commenters of potential abuse and fraud.

New § 1022.142(b)(6)(ii)(A) contains language from the proposed rule providing that the documentation submitted to consumer reporting agencies must include items of adverse information that should not be furnished by a consumer reporting agency because the items resulted from a severe form of trafficking in persons or sex trafficking of which the consumer is a victim.

New § 1022.142(b)(6)(ii)(B) provides that documentation identifying the adverse items of information must also contain a preferred method for a consumer reporting agency to contact the consumer. As explained in the section-by-section analysis of § 1022.142(f) below, the final rule requires a consumer reporting agency to provide written or electronic notice to the consumer within five days of reaching a final determination on a submission. Many commenters underscored that victims of trafficking frequently have a heightened need to keep their location confidential as well as to ensure their request to block information is not communicated to a location where their trafficker may be able to receive the information. The Bureau is concerned that fear of a victim's safe address or phone number reaching their trafficker may deter some victims from seeking to block adverse information. For this reason, the final rule provides that victims of trafficking must submit a preferred method of contact for use by the consumer reporting agency. Consumer reporting agencies are required to use that method of contact and are prohibited from using that information for any purpose other than to communicate about the consumer's request as described in § 1022.142 (d) through (f). The Bureau also understands some consumers who are victims of trafficking may prefer to provide the physical or email address contact information of the consumer's designated representative instead of the consumer's contact information. Accordingly, consumer reporting agencies must use the preferred method of contact identified by consumer pursuant to § 1022.142(b)(6)(ii) for communications under § 1022.142 (d) through (f) even if the preferred contact is the consumer's designated representative and not the consumer.

The Bureau concludes that a victim of trafficking is in the best position to reliably identify which adverse items of information resulted from being trafficked. The Bureau is adopting the proposed rule's approach of not defining what an “adverse item of information” in a “consumer report” is, because it may vary depending on the weight each individual user of a consumer report gives to certain items of information as well as the consumer's individual circumstances and adding this language to the rule. The Bureau notes this approach will allow a victim of trafficking the opportunity to include adverse items of information that may not affect credit status, but resulted from victimization. As discussed below under § 1022.142(c) of the final rule, the Bureau is not adopting any exceptions to the requirement that consumer reporting agencies block adverse information that resulted from trafficking. Under the final rule, if a consumer has identified information resulting from trafficking as adverse, a consumer reporting agency must block that information. For example, the Bureau is concerned that some trafficking documentation may reference the time period the consumer was trafficked, but the consumer may request to block adverse items of information that arose after the victim was trafficked. A consumer who has been trafficked may have, for example, incurred debt or been evicted as a consequence of financial strain that was the result of having been trafficked. Under the final rule a consumer reporting agency must block adverse items of information that the consumer identifies as having resulted from trafficking and may not choose to only block adverse items of information that are the same or overlap with the time period the consumer was trafficked.

The Bureau received requests from a few commenters to create a form that a consumer could use to identify adverse information. Commenters suggested that the form could include information such as the consumer's personal information, contact information, period of time the consumer was trafficked, items of adverse information with an explanation why the information is the result of trafficking, identification of who is submitting the form, and the signature of the victim subject to penalty of perjury. The Bureau understands the ease of access a form could provide to consumers as well as to consumer reporting agencies and may determine to issue guidance in the future. However, the final rule provides flexibility to consumers by only requiring that consumers identify adverse items of information that resulted from trafficking, and the Bureau has determined that there is no need to include a form in the final rule.

Proposed § 1022.142(b)(7) adopted the definition of “victim of trafficking” set out in section 605C(a)(3), which defines the term as a person who is a victim of a “severe form of trafficking in persons” or “sex trafficking.” Several individual commenters recommended that the Bureau use the term “survivor” rather than “victim.” These commenters observed that many believe that the use of “survivor” minimizes any stigma associated with victimhood and empowers individuals who have suffered harm from trafficking.

One advocacy group suggested that the Bureau remove the reference to victims of sex trafficking in this definition, leaving only a victim of “severe forms of trafficking in persons” within the definition of a “victim of trafficking.” This commenter argued that the reference to “sex trafficking” is unneeded and may lead to confusion because “severe forms of trafficking in persons” already includes a sex trafficking component. According to the commenter, “severe forms of trafficking in persons” is the term generally used in Federal law to define eligibility for services and protections, and there is no Federal offense of “sex trafficking” as it is defined in the TVPA, 22 U.S.C. 7102(12), thus there are no “victims” of that offense.

The Bureau is finalizing this definition as proposed. First, this rule uses the term “victim” primarily because that is the wording of section 6102 of the 2022 NDAA and the TVPA. 50 While the Bureau recognizes that the term “survivor” is preferred by many individuals, service providers, and advocacy groups in other contexts, “victim” is used more commonly in laws giving individuals rights and formal standing within the justice system. 51 Second, regarding the inclusion of “sex trafficking” in the definition of “victim of trafficking,” section 605C(a)(3) expressly provides that “victim of trafficking” means a person who is a victim of (1) a severe form of trafficking in persons or (2) sex trafficking. As discussed in the section-by-section analysis of § 1022.142(b)(5) above, “sex trafficking” means the recruitment, harboring, transportation, provision, obtaining, patronizing, or soliciting of a person for the purpose of a commercial sex act. Only some kinds of sex trafficking are included within the definition of “severe forms of trafficking in persons,” namely sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age. The Bureau concludes that the inclusion of a victim of sex trafficking within the definition of “victim of trafficking” is not superfluous or likely to lead to confusion. Indeed, the fact that Congress expressly included victims of sex trafficking as victims of trafficking suggests that Congress intended the scope of this rule to apply more broadly than just to victims of severe forms of trafficking in persons.

The Bureau understands that “severe forms of trafficking in persons,” as defined in the TVPA, 22 U.S.C. 7102(11), is often the definition used to define trafficking under Federal law. 52 The Bureau expects that many, if not most, victims of trafficking seeking to make use of the procedure set out in this section will have documentation identifying them as victims of conduct that qualifies as a “severe form of trafficking in persons” which includes components of “sex trafficking” and “labor trafficking,” as opposed to “sex trafficking” as defined in the TVPA, 22 U.S.C. 7102(12). However, the Bureau is concerned that limiting the definition of “victim of trafficking” to only victims of sex trafficking as defined in a “severe form of trafficking in persons” could potentially limit the scope of the remedy created by this section, in direct contradiction to the plain language of the statute. Additionally, even if there is no Federal criminal offense of “sex trafficking” as defined in the TVPA, a person could still be identified as a victim of the conduct meeting that definition. 53 Finally, the Bureau does not believe that the inclusion of victims of sex trafficking in general within this definition is likely to lead to confusion among consumers, even if eligibility for other programs and services is limited to victims of severe forms of trafficking, since all victims who qualify for those other programs and services will also be eligible under this section. For these reasons, the Bureau finalizes this definition as proposed.

Section 605C(b) provides that a consumer reporting agency may not furnish a consumer report containing any adverse item of information about a consumer that resulted from a severe form of trafficking in persons or sex trafficking if the consumer has provided trafficking documentation to the consumer reporting agency. Proposed § 1022.142(c) would have adopted this statutory language. The Bureau sought comments on whether this provision warrants further clarification.

The Bureau received several comments on this aspect of the proposal. Consumer and anti-trafficking advocacy groups were largely in favor of blocking all items of adverse information, including criminal convictions and eviction histories. Several individual commenters asked the Bureau to apply the final rule to victims of domestic violence, arguing that there are similarities in financial hardship between victims of domestic violence and human trafficking. An industry commenter asked the Bureau to clarify that the types of adverse information that should be excluded from a consumer report is limited to only those adverse items that were related to the trafficking. Similarly, another industry commenter urged the Bureau to require victims to provide sufficient information to identify the adverse information that must be removed. The commenter also suggested that information on criminal convictions should require additional documentation in the form of a court order showing that the record has been expunged or the conviction underlying the record was reversed. This commenter urged the Bureau to consider including a specific exception permitting a consumer reporting agency to provide a Federal, State, or local law enforcement agency with access to the blocked information as provided for in section 605B(f) of the FCRA concerning identity theft information. Further, this commenter argued that information related to the revocation or non-renewal of required professional licenses or certifications should be excluded from the final rule because it is factual in nature and that the reason for revocation or non-renewal will not be evident from the records. They also asked the Bureau to create an exemption similar to section 605B(f) of the FCRA that would allow consumer reporting agencies to provide blocked information to law enforcement agencies.

After considering the comments, the Bureau is finalizing § 1022.142(c) as proposed with minor technical revisions. The Bureau concludes that the final rule applies to all types of adverse information, including criminal and license records, and should not contain an exception for law enforcement agencies to access such information. 54 The statute does not exclude adverse information about licensure, criminal convictions, or any other type of adverse information from this provision. Excluding these categories of information would contradict the purpose of section 605C and the final rule. The Bureau understands that a large number of victims of trafficking have a criminal record as a result of being trafficked. According to a recent study, a criminal record impacts one's current or prospective employment opportunities because of background checks, family law issues involving visitation and child custody, the ability to obtain safe and affordable housing, medical care in the form of discrimination by healthcare providers, education where college applicants are required to answer criminal history questions as part of the admissions process, student loans as eligibility for Federal aid may be suspended if convicted of a drug offense, and immigration relief. 55 Thus, the Bureau finds that such information is clearly “adverse,” and if the criminal history is a result of trafficking the Bureau concludes that it must be blocked. Applying § 1022.142 to all types of adverse information is consistent with section 605C and will provide victims with the best ability to secure financial integration and independence. Similarly, section 605C does not contain an exception for consumer reporting agencies to provide blocked information to law enforcement agencies and the Bureau concludes that such an exception is not warranted because such information would be blocked only after a consumer obtained a victim determination by an entity pursuant to § 1022.142(b)(6)(i).

The Bureau also declines to expand the final rule to cover victims of domestic violence who have not been victims of “severe forms of trafficking in persons” or “sex trafficking.” Congress did not apply section 605C to victims of domestic violence. Moreover, section 6102(c) of the 2022 NDAA limits the Bureau's present rulemaking to preventing a consumer reporting agency from furnishing a consumer report containing any adverse item of information about a consumer that resulted from “trafficking” which section 605C defines as “severe forms of trafficking in persons” and “sex trafficking” under the TVPA. This does not mean, however, that consumers who are victims of domestic violence cannot be victims of trafficking if they otherwise meet the definition.

As explained in the proposal, the Bureau interprets § 1022.142(c) to mean that a consumer reporting agency may not furnish any adverse item of information in a consumer report to the extent such information resulted from the consumer's involvement in a severe form of trafficking in persons or sex trafficking and the consumer submitted trafficking documentation to the consumer reporting agency. In other words, this provision applies to information contained in the consumer report, and not the furnishing of a consumer report more generally. A consumer reporting agency may furnish a consumer report about a consumer who is a victim of trafficking so long as the report does not contain information that is required to be blocked by § 1022.142. The Bureau concludes that final § 1022.142(c) is sufficiently clear because: (1) section 1022.142(b)(6)(ii)(A) limits the definition of “trafficking documentation” to documentation that identifies any items of adverse information that should not be furnished by a consumer reporting agency because the items resulted from a severe form of trafficking in persons or sex trafficking of which the consumer is a victim; and (2) section 1022.142(e)(4), described in the section-by-section analysis below, clarifies that a consumer reporting agency may decline to block, or may rescind any block of, adverse information if the consumer reporting agency cannot properly identify the adverse items of information under § 1022.142(b)(6)(ii).

Proposed § 1022.142(d) established a method for consumers to submit trafficking documentation to consumer reporting agencies, as required in section 605C(c)(2). Proposed § 1022.142(d)(1) stated that consumer reporting agencies must provide mailing addresses for a consumer to submit required documentation and may also establish a secure online portal for submissions. The proposed rule specifically required consumer reporting agencies to accept documentation sent to: (1) the mailing, and if applicable, website address used for disputes under section 611 of the FCRA; and (2) the new dedicated mailing address and, if applicable, a website address a consumer reporting agency must maintain to block adverse items of information resulting from trafficking. Proposed § 1022.142(d)(2) provided that a consumer reporting agency must add information on its publicly available website stating how submissions for the blocking of adverse items of information resulting from trafficking can be submitted. Proposed § 1022.142(d)(3) provided that consumer reporting agencies must allocate a reasonable amount of personnel to respond to consumer inquiries about the process for and status of submissions at the existing toll-free number for disputes under section 611 of the FCRA and establish a separate toll-free telephone number dedicated to addressing submissions from consumers seeking to block adverse items of information resulting from trafficking. For the reasons discussed below, the Bureau is finalizing § 1022.142(d) largely as proposed, with revisions to clarify consumer reporting agencies are required to provide and accept submissions at two mailing addresses and these addresses must be provided to a consumer and consumer representative as described in § 1022.142(b)(6)(ii), submissions must consist of an appropriate proof of identification under § 1022.142(b)(1) and trafficking documentation under § 1022.142(b)(6), and to address comments received regarding application of the toll-free telephone number requirement to all consumer reporting agencies.

One consumer group commented in support of the requirement to accept trafficking documentation at both existing addresses used for disputes under section 611 and dedicated addresses established to accept submissions under this section. Comments from industry groups varied. One financial institution recommended that the Bureau require consumer reporting agencies to use either the address used for section 611 disputes or a dedicated address for trafficking, while two trade associations recommended that the Bureau require the use of existing channels to limit costs for consumer reporting agencies and complexity for consumers. Another trade association recommended that the Bureau limit the requirement for additional mailing addresses (and web addresses, if applicable) and a toll-free number to only nationwide consumer reporting agencies as defined in section 603(p) of the FCRA. 56 A different trade association stated its opposition to requiring consumer reporting agencies to create a toll-free number for submissions under this section. This commenter argued that since the existing toll-free number requirement for disputes is only applicable to nationwide consumer reporting agencies under section 609(c)(1)(B), requiring a toll-free number for disputes is beyond the scope of this rulemaking and would be an unnecessary, new expense that may lead to consumer confusion.

Several consumer groups urged the Bureau to require consumer reporting agencies to post detailed information about how information submitted by trafficking survivors is accessed, used, stored, and protected on relevant websites. Another consumer group recommended requiring consumer reporting agencies to provide links to other resources, such as information about available civil legal services, confidential mailing addresses, public benefits assistance, and the National Human Trafficking Hotline.

For the reasons discussed below, the Bureau is finalizing § 1022.142(d) with revisions to the proposal. Final § 1022.142(d)(1) clarifies that a consumer reporting agency must provide two mailing addresses for a consumer, or consumer representative as described in § 1022.142(b)(6)(ii), to send a submission consisting of an appropriate proof of identification under § 1022.142(b)(1) and trafficking documentation under § 1022.142(b)(6). The final rule also provides that a consumer reporting agency may establish a secure online website portal for a consumer to upload a submission. This means if a consumer reporting agency intends to accept a submission electronically, it must create a secure online website portal and provide information on its website informing consumers where to upload the submission. New § 1022.142(d)(1) requires consumer reporting agencies to accept a submission sent to: (1) the mailing, and if applicable, website address used for disputes under section 611 of the FCRA; and (2) the mailing address and, if applicable, the website address dedicated to blocking adverse items of information resulting from a severe form of trafficking in persons or sex trafficking under § 1022.142.

The Bureau finds that the small costs related to requiring consumer reporting agencies to establish a mailing address (or website address, if applicable) specifically dedicated to trafficking are justified by the benefits this approach would provide to consumers. Allowing consumer reporting agencies to use either their existing address under section 611 of the FCRA for disputes or a new address to receive documentation from victims of trafficking would add confusion and complexity for consumers, particularly if the consumer reporting agency does not make clear the distinction between disputes and block requests for victims of trafficking under this section. Additionally, the Bureau is concerned about the potential confusion caused by various consumer reporting agencies taking different approaches. These concerns are equally valid for all types of consumer reporting agencies, so the Bureau declines to apply this requirement to only the nationwide consumer reporting agencies under section 603(p) of the FCRA. The Bureau has determined that requiring all consumer reporting agencies to establish dedicated addresses for each procedure will allow consumers to make use of this section most efficiently and effectively at a relatively low cost.

Section 1022.142(d)(2) of the final rule provides that a consumer reporting agency must add information on its publicly available website stating how submissions for the blocking of adverse items of information resulting from a severe form of trafficking in persons or sex trafficking should be provided to a consumer reporting agency.

For § 1022.142(d)(3), the Bureau agrees, however, with comments recommending that the toll-free telephone number requirement be limited to nationwide consumer reporting agencies. As noted by several industry commenters, nationwide consumer reporting agencies are currently required to have toll-free telephone numbers at which personnel are accessible to consumers during normal business hours under section 609(c)(1)(B) of the FCRA, 57 so this requirement adds minimal extra expense for those agencies. Requiring nationwide consumer reporting agencies to make personnel available by phone to answer questions about this process will provide significant benefits to consumers. Providing an avenue for consumers to ask questions before submitting trafficking documentation will make the process more efficient, and allowing consumers to check the status of their submissions will allow them to confirm that the process is working as intended. The Bureau recognizes that the costs associated with staffing a toll-free telephone number are greater for consumer reporting agencies that are not already subject to a similar requirement, and the Bureau anticipates that smaller, non-nationwide consumer reporting agencies are likely to receive less contact from consumers. For those reasons, the Bureau has limited the scope of this requirement to nationwide consumer reporting agencies as provided for in § 1022.142(d)(3).

The Bureau declines to adopt further requirements requiring consumer reporting agencies to post detailed information about how information submitted by victims of trafficking is accessed, used, stored, and protected. The Bureau's primary focus is on ensuring that information on how a consumer may submit documentation to the consumer reporting agency is made publicly available to consumers in a clear, easy-to-understand format. Requiring other information risks making that information more difficult for a consumer to find. If a consumer reporting agency wishes to include information about other resources for victims of trafficking, such as links to the National Human Trafficking Hotline, relevant government agencies, or other service providers, it may do so, but the Bureau declines to impose such a requirement.

In order to fully implement the consumer protection provisions of section 605C, the Bureau looked at pre-existing statutory and regulatory requirements concerning the procedures used by consumers in reporting identity theft and in disputing the accuracy of information in consumer files and consumer reports and the obligations those regulations place on consumer reporting agencies to identify what aspects of those regulations might be useful in helping a consumer seeking to report items of adverse information that result from a severe form of trafficking in persons or sex trafficking of which the consumer is a victim.

Section 1022.142(e) through (h) set forth below describe: (1) provisions to address the blocking of adverse information identified by the consumer, a requirement to notify the consumer and attempt to resolve deficiencies, the timing of the final determination, and limited situations in which the consumer reporting agency may decline or rescind a block; (2) the obligations of consumer reporting agencies to notify the consumer of the outcome with respect to the submission; (3) a record retention requirement of seven years from the date the submission is received by consumer reporting agencies; and (4) a requirement that consumer reporting agencies establish and maintain written policies and procedures to ensure and monitor compliance with section 605C and these implementing regulations. The Bureau proposed these procedural requirements under its authority in section 621(e) of the FCRA to prescribe regulations that are necessary and appropriate to administer and carry out the purposes and objectives of the FCRA, and to prevent evasions or to facilitate compliance. 58

In the proposed rule, the Bureau acknowledged consumer reporting agencies may encounter difficulty confirming certain information submitted by consumers. Under proposed § 1022.142(e), the Bureau proposed to provide consumer reporting agencies with the authority to decline to act, or to rescind action (if applicable) on a submission. This provision is similar to section 605B(c) of the FCRA, which allows a consumer reporting agency to decline to block information relating to a consumer, or to rescind any block, if the consumer reporting agency makes certain reasonable determinations. The Bureau also sought feedback on the use or adoption of procedures in the existing process in Regulation V for consumer reporting agencies that make reasonable requests for additional information for the purpose of determining the validity of alleged identity theft. 59 As discussed in more detail in the section-by-section analysis of § 1022.142(f) below, the Bureau also proposed in § 1022.142(f)(1) to require a consumer reporting agency to provide written notice to a consumer of the results of a submission within five calendar days of receipt of the submission (or, if rescinding a previously applied block, five calendar days after rescinding). The Bureau requested comment on whether additional clarification on the manner in which a consumer reporting agency must notify the consumer and attempt to resolve any deficiencies in the submission of trafficking documentation is warranted.

The Bureau also sought comment on whether the adverse items of information should simply be blocked from being reported as proposed, or should be deleted from the consumer's file (or the file be modified as appropriate). 60 Additionally, the Bureau requested comment on whether a consumer reporting agency should be required to notify a furnisher about the consumer's trafficking documentation submission to prevent a consumer reporting agency from furnishing a consumer report containing any adverse item of information about a consumer that resulted from a severe form of trafficking in persons or sex trafficking.

In relation to comments on the proposed five-calendar-day notice period in § 1022.142(f), an industry group stated the timeframe for blocking the adverse information is insufficient and should be separate from the timeframe to notify the victim. This commenter urged the Bureau to adopt timing that mirrors section 605B of the FCRA for ease of implementation and allow at least four business days for blocking and five business days to provide notice to the consumer after the placement or rejection of a requested block to provide notice to a consumer. The commenter also requested that the Bureau modify the timing from calendar days to business days to account for Federal holidays and weekends.

In response to the request for comment on whether information should be blocked from being reported, deleted, or modified as appropriate, a consumer advocate commenter was supportive of deletion of the adverse information to ensure it was not accidentally reinserted or did not reappear after being “soft deleted” or suppressed. An industry commenter stated the Bureau should require the consumer reporting agency or furnisher to delete the items of adverse information or modify the credit file with some indication to align with current identity theft disputes procedures instead of suppressing the information. A commenter encouraged the Bureau to require adverse information to be blocked, not deleted, because the blocked information could be useful to law enforcement and prosecutors who are prosecuting traffickers. However, this commenter suggested that the information should be maintained in a secure fashion that can only be accessed through proper legal service. The commenter also suggested that consumer reporting agencies should be required to either flag that information has been suppressed without disclosing the reason for the suppression or suppress the information without any flag. One consumer group suggested that in some cases it may be better for the consumer if the item is not deleted because permanent deletion of consumer information could be detrimental to the consumer's record and the act of deleting the information will likely result in reinsertion because a furnisher is likely to provide it again. This commenter encouraged the Bureau to issue regulations that could require a consumer reporting agency to do what is in the best interest of the consumer on blocking or deletion.

Commenters were divided on whether consumer reporting agencies should be required to notify a furnisher of an item of adverse information when it receives a submission from a consumer. One individual commenter, a financial institution, a consumer group, and an industry group supported notification because it would prevent the furnisher from re-furnishing the information to that consumer reporting agency and from providing the information to other agencies, providing more benefits to consumers. Two other consumer groups and three industry trade associations opposed furnisher notification, citing concerns about the further dissemination of sensitive consumer information and potential compliance obligations that it would place on furnishers that receive this information. Two consumer groups advocated for allowing a consumer to opt in or out of furnisher notification at the time of submission, arguing that this approach would attain many of the benefits of automatic notification while allowing victims to control the dissemination of their personal information.

The Bureau has considered the comments, and for the reasons set forth below, is finalizing § 1022.142(e) with several revisions and is renumbering the section. The Bureau is moving proposed § 1022.142(e), which addresses the authority to decline or rescind a block, to § 1022.142(e)(4) and renaming final § 1022.142(e) to reflect that it addresses the blocking of adverse information resulting from trafficking. The Bureau is further finalizing the rule with new § 1022.142(e)(1) through (e)(3) to cover the block of adverse information identified by the consumer as resulting from a severe form of trafficking in persons or sex trafficking, the requirement to notify the consumer and attempt to resolve deficiencies, and the final determination on blocking the reporting of adverse information identified by the consumer as resulting from a severe form of trafficking in persons or sex trafficking. These new provisions cover timing and procedural questions raised in response to the Bureau's request for feedback on the adoption of procedures used for identity theft in Regulation V for supplemental requests. The Bureau is also finalizing the rule without also requiring the deletion of adverse information in a consumer's file resulting from a severe form of trafficking in persons or sex trafficking or notification to furnishers.

The Bureau is implementing a multi-step process that a consumer reporting agency must follow when it receives a submission under § 1022.142(d)(1). First, § 1022.142(e)(1) provides that a consumer reporting agency has four business days from receipt of the consumer's submission to block items of adverse information identified by the consumer or their representative from appearing in a consumer report. The Bureau concludes that four business days provides consumer reporting agencies with adequate time to institute a block of the items of adverse information identified by the consumer or their representative. Action within this timeframe is important since the Bureau recognizes a consumer may be in urgent need of housing or employment that could be facilitated by the block of the adverse information.

Second, the Bureau is imposing a time period of five business days under which a consumer reporting agency must notify the consumer and attempt to resolve any deficiency in the consumer's submission in new § 1022.142(e)(2)(i). The Bureau recognizes in some cases the submission may not be complete, and the consumer reporting agency may need to obtain additional information from the consumer on a case-by-case basis in order to confirm the submission is complete. Section 1022.142(e)(2)(i) of the final rule provides that a consumer reporting agency is required to notify the consumer and attempt to resolve any deficiencies limited to instances where: (1) the consumer reporting agency cannot reasonably confirm the appropriate proof of identity for the consumer and, if applicable, the consumer's representative under § 1022.142(b)(1); (2) the consumer did not provide documentation consisting of a victim determination under § 1022.142(b)(6)(i); or (3) the consumer reporting agency cannot properly identify the adverse items of information under § 1022.142(b)(6)(ii). The final rule also provides that a consumer reporting agency may not ask for information on the validity of the facts or circumstances detailed in the contents of the submitted trafficking documentation establishing the consumer is a victim of trafficking or whether the identified adverse information resulted from a severe form of trafficking in persons or sex trafficking under § 1022.142(b)(6).

Third, § 1022.142(e)(2)(ii) provides a consumer reporting agency with a maximum of 25 business days after receiving the consumer's submission under § 1022.142(d)(1) to make a final determination on whether the submission is complete in order to perform the final determination of the block under § 1022.142(e)(3) or decline to block or rescind any block under § 1022.142(e)(4). The Bureau expects consumer reporting agencies to make any requests for clarifying information as expeditiously as possible (and limited to the reasons in § 1022.142(e)(2)(i)) in order to allow consumers with an adequate amount of time to provide the requested information. For example, the Bureau expects a consumer reporting agency to send a request for additional information, if needed to complete the submission, to the preferred method of contact identified by the consumer required by § 1022.142(b)(6)(ii)(B). If the consumer reporting agency does not receive a response from the consumer, the consumer reporting agency must send an additional request to the consumer with sufficient time for a response within the 25-business day limit for a final determination in § 1022.142(e)(2)(ii). The Bureau's timeframe for action by the consumer reporting agency reflects a balance between the four-business-day timeframe for a consumer reporting agency to block the reporting of information in the context of alleged identity theft (under section 605B) and the 30-day timeframe a consumer reporting agency generally has to conduct a reasonable reinvestigation of the completeness or accuracy of a disputed item (under section 611). The Bureau concludes that these timeframes are reasonable and addresses concerns noted by commenters.

Fourth, § 1022.142(e)(3) requires the consumer reporting agency to initiate a block (if the consumer reporting agency lacked enough information to perform a block under § 1022.142(e)(1)) or maintain a block initiated pursuant to § 1022.142(e)(1) upon confirming the completion of the consumer's submission and in accordance with the requirements of § 1022.142(e)(2).

The Bureau is not requiring consumer reporting agencies to notify a furnisher about the consumer's submission in the final rule. The Bureau requested comment on requiring a consumer reporting agency to notify the furnisher of the block in order to give a furnisher the opportunity to cease furnishing the blocked information to the consumer reporting agency that provided the notification. In the proposed rule, the Bureau evaluated whether this could then help ensure that blocked information is not refurnished and reinserted in a consumer report and help prevent the adverse items of information from being furnished by other consumer reporting agencies. However, the Bureau is declining to require notification to furnishers given the serious privacy and data security concerns raised by commenters who noted a risk that information that is passed to a furnisher could more easily reach a trafficker and put the consumer at risk. The Bureau encourages consumer reporting agencies to develop a process to ensure the reinsertion of adverse items resulting from a severe form of trafficking in persons or sex trafficking after being blocked from the consumer's file does not occur. However, the Bureau cautions that consumer reporting agencies should not provide furnishers with information about the consumer's request or the reason for the block.

The final rule also does not require consumer reporting agencies to delete adverse items of information identified by the victim of trafficking from the consumer's credit file. The Bureau has determined that requiring consumer reporting agencies to delete that information would be counterproductive because, as explained above, the final rule does not require a consumer reporting agency to notify the furnisher of adverse information that a consumer has submitted the required documentation. If the information is deleted, but the furnisher is not provided with a reason, there is a substantial risk that the information will be reinserted into the report, whereas a block without deletion makes it more likely that the consumer reporting agency will not include the adverse information in future reports after the information is confirmed to remain blocked in § 1022.142(e)(3).

In the proposed rule, the Bureau stated consumer reporting agencies may encounter difficulty confirming certain information submitted by consumers. Under proposed section 1022.142(e), the Bureau proposed to provide consumer reporting agencies with the authority to decline to act, or to rescind action (if applicable) on a submission. The proposed provision was similar to section 605B(c) of the FCRA, which allows a consumer reporting agency to decline to block information relating to a consumer, or to rescind any block, if the consumer reporting agency makes certain reasonable determinations. 61

Proposed § 1022.142(e) provided that a consumer reporting agency may decline to block, or may rescind any block, of adverse items of information resulting from a severe form of trafficking in persons or sex trafficking where: (1) the consumer reporting agency requests and cannot reasonably confirm the appropriate proof of identity under § 1022.142(b)(1); (2) the consumer cannot provide documentation under § 1022.142(b)(6)(i); or (3) the consumer reporting agency cannot properly identify the adverse items of information under § 1022.142(b)(6)(ii).

The section-by-section analysis of § 1022.142(e) of the proposed rule discussed how the Bureau is not proposing to interpret section 605C as giving a consumer reporting agency the discretion to contest the merits of the submitted trafficking documentation, if such documentation meets the definition in section 605C(a) and in proposed § 1022.142(b)(6)(i). In the section-by-section analysis of § 1022.142(e) in the proposed rule, the Bureau did not propose to interpret section 605C as giving a consumer reporting agency the discretion to challenge a consumer's determination that an adverse item of information resulted from a severe form of trafficking in persons or sex trafficking under § 1022.142(b)(6)(ii). However, the Bureau sought comments on these approaches.

The Bureau proposed to clarify in § 1022.142(e) that consumer reporting agencies can request appropriate proof of identity of the consumer who is a victim of trafficking as defined in § 1022.142(b)(1) and that consumer reporting agencies can decline or rescind a block if it cannot reasonably confirm the appropriate proof of identity. Proposed § 1022.142(e) also required a consumer reporting agency, prior to exercising its authority to decline or rescind a block, to notify the consumer and attempt to resolve any deficiency in the consumer's submission.

The Bureau received comments from industry and consumer advocates on certain aspects of this provision. Several consumer advocates supported the Bureau's proposed approach and urged the Bureau not to give consumer reporting agencies discretion to decide whether consumers were victims of trafficking beyond confirming that the consumer has provided required trafficking documentation and identified the adverse information that resulted from trafficking. At least one consumer advocate urged the Bureau to provide an enumerated list of acceptable documentation, prohibit a consumer reporting agency from rejecting that documentation, and expressly state that a consumer reporting agency cannot reject a request for any reason other than those listed in § 1022.142(e). The same commenter also asked that the final rule specifically state that a consumer reporting agency cannot decline to block adverse information because the consumer reporting agency questions the merits of the submitted trafficking documentation or the consumer's determination that an adverse item of information resulted from trafficking. An industry commenter generally supported the proposed provision, but asked that the reasons for rescinding or declining a block be expanded to cover two additional scenarios: (1) a material misrepresentation of fact; and (2) criminal record information if the victim is required to register as a sex offender.

For the reasons discussed below, the Bureau is adopting its proposal by renumbering proposed § 1022.142(e) to § 1022.142(e)(4) and by clarifying the limited circumstances under which a consumer reporting agency may decline or rescind a block. New § 1022.142(e)(4) provides that a consumer reporting agency may only decline or rescind a block only if the consumer reporting agency cannot reasonably confirm the appropriate proof of identity for the consumer and, if applicable, the consumer's representative under § 1022.142(b)(1), the consumer cannot provide documentation consisting of a victim determination under § 1022.142(b)(6)(i), or the consumer reporting agency cannot properly identify the adverse items of information under § 1022.142(b)(6)(ii). This means a consumer reporting agency can request appropriate proof of identity of the consumer who is a victim of trafficking as defined in § 1022.142(b)(1) and, if applicable, the consumer's representative, and that consumer reporting agencies can decline or rescind a block if it cannot reasonably confirm the appropriate proof of identity. Similar to the section-by-section analysis of § 1022.142(e) in the proposed rule, the Bureau does not interpret section 605C as giving the consumer reporting agency the discretion to contest the merits of the submitted trafficking documentation, if it meets the definition in section 605C(a) and in § 1022.142(b)(6)(i), nor does it interpret the statute as giving a consumer reporting agency the discretion to challenge a consumer's determination that an adverse item of information resulted from a severe form of trafficking in persons or sex trafficking under § 1022.142(b)(6)(ii). Accordingly, the Bureau is amending the text of new § 1022.142(e)(4) to provide that a consumer reporting agency may not decline to block or rescind any block of adverse information identified by the consumer or if applicable, the consumer's representative, based on the validity of the facts or circumstances detailed in the contents of the submitted trafficking documentation under § 1022.142(b)(6) of this section.

Section 1022.142(e)(4) also provides that a consumer reporting agency may decline or rescind a block only after the consumer is notified using the method of contact specified by the consumer in § 1022.142(b)(6)(ii)(B) and the consumer reporting agency attempted to resolve any deficiency in the consumer's submission as required in § 1022.142(e)(2). The Bureau believes requiring consumer reporting agencies to notify the consumer and attempt to resolve any deficiencies in the consumer's submission will facilitate compliance and is appropriate to prevent a consumer reporting agency from furnishing a consumer report containing any adverse item of information about a consumer that resulted from trafficking by providing consumers an opportunity to complete their submission or correct mistakes with respect to information or documentation they provide initially and making it less likely that a consumer reporting agency will decline to block or a rescind a block in error. In doing so, the Bureau is relying on its regulatory authority under section 621(e) of the FCRA, which authorizes the Bureau to prescribe regulations that promote accuracy and fairness in credit reporting, and on the general rulemaking authority granted the Bureau under section 1022(b)(1) of the Dodd-Frank Act.

The Bureau concludes that giving consumer reporting agencies additional discretion to evaluate the validity of the facts or circumstances detailed in the contents of trafficking documentation, as defined in § 1022.142(b)(6), would make it difficult for consumers to understand how to properly submit a request, may decrease the Bureau's ability to monitor for compliance, and could also lead to invalid reasons for declining or rescinding a block. As discussed in more detail above in the section-by-section analysis of § 1022.142(c), Congress did not provide an exception for criminal convictions and the final rule does not provide such an exception. The Bureau also concludes that the final rule should not provide a material misrepresentation of fact as a reason a consumer reporting agency may decline or rescind a block since the Bureau does not interpret section 605C(a)(1) as permitting a consumer reporting agency to make factual determinations on whether a consumer is a victim of trafficking or if adverse items of information identified by the consumer resulted from a severe form of trafficking in persons or sex trafficking. The Bureau also finds doing so could lead to confusion and result in improper denials if the consumer reporting agency inappropriately concludes that a material misrepresentation of fact was made. Accordingly, the Bureau is finalizing the proposed rule, with the clarifications noted above.

The Bureau proposed in § 1022.142(f)(1) to require a consumer reporting agency to provide written notice to a consumer of the results of a submission within five calendar days of receipt of the submission (or, if rescinding a previously applied block, five calendar days after rescinding). As proposed, § 1022.142(f)(2) would have required a consumer reporting agency to provide notice in writing informing the consumer that the review of the submission is completed, a statement explaining the outcome, a consumer report provided at no cost to the consumer that is based upon the consumer's revised file (if applicable), a description of the procedures used to determine the outcome, a method for contacting the consumer reporting agency to appeal the determination or revise the submission to cure any of the noted reasons for declining to block the requested adverse information, and the web page consumers can use to submit complaints to the Bureau.

The Bureau received mixed comments on the proposed notice requirements. Several individual and consumer group commenters expressed their general support for the proposal. Two industry trade associations objected to the proposed five-calendar-day notice period. One of these commenters specifically urged the Bureau to mirror section 605B of the FCRA for ease of implementation and allow at least four business days for blocking and five business days to provide notice to the consumer. This commenter also argued that the requirement to provide written notice is beyond the scope of the rulemaking directed by section 605C. The other commenter stated five days is an insufficient time to require consumer reporting agencies to provide a written notice for documents that are submitted, but not rescinded. This commenter also proposed the Bureau change “provide” to “send” to address the delivery time that is not typically within the control of a consumer reporting agency. One consumer group recommended that the Bureau require consumer reporting agencies to use a preferred mailing address provided by the victim because of safety and privacy concerns. An industry trade association made a similar request, noting that consumer reporting agencies may not have a current address or contact information for the consumer.

Multiple individual commenters and consumer groups supported requiring a consumer reporting agency to automatically send a revised consumer report to the consumer. Other commenters recommended that the Bureau require consumer reporting agencies to provide instructions for obtaining a current copy of their credit report rather than automatically mailing a copy, in accordance with existing procedures to protect the privacy of victims. One industry commenter questioned how this requirement would apply to consumer reporting agencies like background screeners that do not maintain a file from which to draft new reports. The Bureau also received several comments urging the adoption of other requirements not addressed in the proposal. One consumer group commenter urged the Bureau to require a consumer reporting agency to include in the notice details on the appeals process if a request is declined, and another opposed allowing the consumer reporting agency to demand specific additional items of information before it would approve a trafficking block.

For the reasons discussed below, the Bureau is finalizing § 1022.142(f) largely as proposed, with some revisions to address certain comments received regarding timing requirements. As described above, § 1022.142(e) of the final rule adopts certain timeframes for the consumer reporting agency to block the reporting of information after receipt of documentation from the consumer. Final § 1022.142(f) has been modified to account for the timing requirements in new § 1022.142(e) by changing the allotted time for a consumer reporting agency to provide notice to the consumer from five calendar days after receipt of the submission to five business days after a final determination on a consumer's submission under § 1022.142(e)(3) (or, if rescinding a previously applied block, five business days after rescinding under § 1022.142(e)(4)) in order to improve implementation of this section.

The Bureau concludes that the contents of the notice required by § 1022.142(f) are appropriately tailored to providing consumers the information they need to ensure that their submission was handled correctly by the consumer reporting agency. This information ensures that the consumer is provided with a thorough explanation of the outcome and the appeals process, and providing a copy of the revised consumer report allows the consumer to verify that the correct items have been blocked. Moreover, requiring a notice to the consumer on how to submit a complaint to the Bureau will facilitate compliance and is appropriate to prevent a consumer reporting agency from furnishing a consumer report containing any adverse item of information about a consumer that resulted from trafficking by providing consumers with the information they need to determine if a consumer reporting agency declined to block or a rescind a block in error and with information about how to get any such error corrected.

If the consumer is not notified of the outcome by the consumer reporting agency, the consumer would either have to separately request a copy of their credit report, perhaps incurring a fee, or wait to see if they are subject to an adverse action the next time their consumer report is used, which may mean missing out on credit, employment, or housing opportunities. Many victims of trafficking will be in particularly urgent need of housing, employment, or credit, and knowing within a reasonable time that a consumer reporting agency has blocked adverse items of information may facilitate a victim's ability to obtain these vital services. The Bureau also finds that these requirements in § 1022.142(f) are necessary to prevent a consumer reporting agency from furnishing a consumer report containing any adverse item of information about a consumer that resulted from trafficking because it provides consumers with the opportunity to review the outcome and, if the consumer reporting agency incorrectly rejected a submission, to dispute that outcome.

The Bureau recognizes that certain consumer reporting agencies may not maintain a file from which they produce reports, including some background screeners. The final text accounts for this situation, as it requires the consumer reporting agency to provide a report “that is based upon the consumer's revised file ( if applicable ) as a result of the consumer's submission.”  62 Accordingly, the Bureau declines to adopt a special exception for consumer reporting agencies that do not maintain files on consumers. Finally, the Bureau adopts a minor clarification that the notice must be sent by the preferred communication method specified by the consumer in the submission as provided for in § 1022.142(b)(6)(ii)(B).

Proposed § 1022.142(g) would have required a consumer reporting agency to retain evidence of submissions under section 605C. The proposal would have also required a consumer reporting agency to maintain documentation concerning the outcome of the submissions, reasons for declining or rescinding to act (if applicable), and compliance with § 1022.142. In the proposed rule, consumer reporting agencies would have needed to retain this information for a period of seven years after the date the submission by the consumer is received. Under section 605 of the FCRA, most adverse information would be excluded from consumer reports after seven years automatically.

The Bureau received comments from individuals, industry, and consumer groups on this proposed provision. While most commenters supported a record retention requirement, all who commented suggested revisions. A few commenters suggested that record retention requirements should be extended to 10 years because certain bankruptcies may be reported for 10 years. Another commenter suggested that consumer reporting agencies should be required to publish their policies on recordkeeping and data collection. Similarly, a consumer advocate urged the Bureau to provide additional information about the data protection obligations of consumer reporting agencies so that survivors understand how their information will be protected. The commenter also suggested that the Bureau communicate any exceptions to the general record retention rule so that survivors can better determine whether they want to submit a request.

Two industry commenters opposed the proposed record retention requirements because they believe that the requirements are antithetical to current data privacy and data security regulation and could increase the scope of, and risk related to, a data breach. They suggested that the requirements are too broad or too long, and one suggested that victims may hesitate to provide information because victims may fear that their information will be shared with others. One commenter argued that submitted information should be destroyed under standard data retention timeframes, which are often much shorter than seven years. The other commenter suggested aligning record retention requirements with the statute of limitations or statute of repose for the FCRA.

For the reasons stated below, the Bureau is finalizing § 1022.142(g) with minor revisions to cross references within the rule. The final rule provides that a consumer reporting agency must retain evidence of submissions and compliance with this section for a period of seven years after the consumer's submission, which the Bureau has determined is an appropriate period of time to require consumer reporting agencies to retain records. The Bureau concludes that it is not appropriate to tie record retention requirements to the statute of limitations or statute of repose because it would unnecessarily complicate the requirements. Those time periods can be difficult to determine and provide less clarity for all involved. While some adverse information remains on a consumer report for longer than seven years, the Bureau has determined that seven years strikes the right balance because most adverse information will be excluded from a consumer report after seven years.

The Bureau finds that requiring consumer reporting agencies to maintain records of compliance will enable the Bureau to assess consumer reporting agencies' compliance with the rules. This requirement will also facilitate compliance by supporting effective and efficient enforcement of the rule in order to prevent a consumer reporting agency from furnishing a consumer report containing any adverse item of information about a consumer that resulted from a severe form of trafficking in persons or sex trafficking.

The final rule contains several clarifying revisions, including one technical correction to clarify that the record retention requirements apply to all submissions sent to the mailing or website address made available under § 1022.142(d)(1). The final rule also clarifies the types of evidence that must be retained under this section by including cross-references to actions taken by a consumer reporting agency under § 1022.142(e)(1) through (e)(3) and (f) as well as the reasons provided under § 1022.142(e)(4) for declining to block or rescinding any block of items of adverse information identified by the consumer.

Proposed § 1022.142(h) required consumer reporting agencies to establish and maintain written policies and procedures reasonably designed to ensure and monitor the compliance of the consumer reporting agency and its employees with the requirements of this section. Rather than proposing a one-size-fits-all approach, proposed § 1022.142(h) specified that these written policies and procedures must be appropriate to the nature, size, complexity, and scope of the activities of the consumer reporting agency and its employees. For example, consumer reporting agencies must develop policies and procedures that address how requests are evaluated and processed, and the limited circumstances a consumer reporting agency may decline or rescind a block under § 1022.142(e).

The Bureau received few comments on this provision. A consumer advocate recommended requiring policies and procedures to detail how trafficking-specific information will be used, shared, and protected and making such policies and procedures available to review before submitting a request. One commenter asked the Bureau to specify penalties for failing to comply with this provision.

The Bureau is finalizing § 1022.142(h) as proposed. The Bureau believes requiring consumer reporting agencies to maintain written policies and procedures is necessary to administer the rule by enabling the Bureau to assess consumer reporting agencies' compliance with the rule and to facilitate compliance in order to prevent a consumer reporting agency from furnishing a consumer report containing any adverse item of information about a consumer that resulted from human trafficking. Written policies and procedures will help consumer reporting agencies ensure they have developed practices that fully implement the requirements of this section that are tailored to the nature, size, complexity, and scope of the activities of the consumer reporting agency and its employees. The Bureau understands that some, if not all, consumer reporting agencies have pre-existing policies and procedures to ensure compliance of the FCRA and Regulation V and these policies and procedures also describe how consumer's information submitted to them will be used, shared, and protected.

The Bureau expects consumer reporting agencies to make information available to consumers who are victims of trafficking information on how their submission of information will be used, shared, and protected. The Bureau believes this is particularly important given the treatment and harm inflicted upon victims of trafficking by their trafficker.

Pursuant to section 6102(c) of the 2022 NDAA, the amendments to the FCRA shall go into effect 30 days after the Bureau issues a final rule. In accordance with procedures for the issuance of Bureau rules, a final Bureau rule is deemed to be issued on the earlier of “(a) [w]hen the final rule is posted on the Bureau's website; or (b) [w]hen the final rule is published in the Federal Register .”  63 This means the effective date of section 605C could be based on the date the final rule is posted on the Bureau's website instead of the date the final rule is published in the Federal Register , if posting on the Bureau's website is first. Under section 553(d) of the Administrative Procedure Act, 64 the required publication or service of a substantive rule must be made not less than 30 days before its effective date, with certain exceptions not applicable here.

In the proposed rule, the Bureau proposed an effective date of 30 days after the date of the final rule's publication in the Federal Register so that the final rule would take effect at the same time as section 605C. The Bureau received two comments requesting a later effective date to give the industry more time to implement the rule. One commenter explained that this extra time is needed to allow the consumer reporting agencies to train employees and implement necessary compliance controls.

The Bureau has considered these comments and has determined that, as proposed, the final rule will become effective 30 days after publication in the Federal Register . Thus, the final rule will take effect as close to the effective date of section 605C as possible. The Bureau finds that an effective date of a rule that is contemporaneous to the statutory effective date will avoid uncertainty for consumers who are victims of trafficking as well as for consumer reporting agencies. To the extent a consumer reporting agency receives a submission between any time period that section 605C is in effect and the effective date of the rule, the Bureau expects consumer reporting agencies to otherwise comply with section 605C(b) by not furnishing a consumer report containing any adverse item of information about a consumer that resulted from a severe form of trafficking in persons or sex trafficking if the consumer has provided trafficking documentation to the consumer reporting agency. 65

In developing this final rule, the Bureau has considered the rule's potential benefits, costs, and impacts in accordance with section 1022(b)(2)(A) of the Consumer Financial Protection Act of 2010 (CFPA). 66 In developing the final rule, the Bureau has consulted or offered to consult with the prudential banking regulators (the FDIC, FRB, NCUA, and OCC) and the Bureau of Indian Affairs, several offices in the DOJ, the Office on Trafficking in Persons in HHS, Department of Homeland Security (DHS), and the FTC, including regarding consistency of this rule with any prudential, market, or systemic objectives administered by those agencies, in accordance with section 1022(b)(2)(B) of the CFPA. Most commenters did not specifically address the Bureau's proposed section 1022(b) analysis; the Bureau discusses those comments that were relevant to the analysis below.

The Bureau expects that the final rule will benefit consumers who are victims of a severe form of trafficking in persons or sex trafficking and have adverse information on file with a consumer reporting agency as a result of that trafficking. The benefits to individual consumers who are victims of trafficking could be considerable—adverse information from consumer reporting agencies could negatively affect a consumer's ability to obtain housing, employment, credit, or other immediate and longer-term services necessary to support long-term independence and financial stability.

Conversely, the final rule will impose costs on consumer reporting agencies in the form of compliance costs associated with processing requests from consumers to block adverse information and effecting the necessary blocks. While the Bureau does not have data to quantify these costs, the Bureau expects the costs of complying with the requirements of the final rule to be small in magnitude. Consumer reporting agencies are already required by 15 U.S.C. 1681c-2 to have systems in place to accept reports of identity theft, and to respond to those reports by suppressing information on any consumer reports. Consumer reporting agencies also have systems in place to address treatment of inaccurate and unverifiable information as required by 15 U.S.C. 1681i(a)(5) and concerning the notice of results of reinvestigation under 15 U.S.C. 1681i(a)(6). This rule's procedural requirements are modeled on these requirements.

Some industry commenters noted that the proposed requirement to have a dedicated toll-free phone number to receive requests to block adverse information related to trafficking would be particularly burdensome for smaller consumer reporting agencies, as the regime for identity theft block requests only requires the nationwide consumer reporting agencies to maintain a dedicated toll-free phone number. The Bureau has modified this provision in the final rule to only impose this requirement on consumer reporting agencies that already maintain a dedicated toll-free number for identity theft. As a result, the final rule will not impose this cost on covered persons.

Although the Bureau characterizes qualitatively the nature of the benefits to consumers and the costs to firms above, it is not able to quantify the overall magnitude of the likely costs and benefits of the proposed rule. Quantifying these costs and benefits would require an estimate of the number of consumers likely to submit information to support a block under the rule in a typical year. Not all victims of trafficking will necessarily have adverse information with a consumer reporting agency, and among those who do, not all will make a submission or be able to provide the required documentation. 67 For instance, a report by the non-profit Polaris, cited by both industry and consumer advocate commenters, found that 26 percent of trafficking victims had bank accounts or credit cards fraudulently opened in their names. 68 While illustrating the importance of the problem this rule is intended to address, this statistic also indicates that not all victims of trafficking necessarily have adverse information with a consumer reporting agency. The Bureau does not have a way to estimate the number of trafficking victims who will make a request, and according to the State Department, there is no reliable estimate of the annual number of trafficking victims in the United States.

To provide a rough sense of scale, the Bureau compares available statistics on human trafficking in the United States to statistics on identity theft, which have a similar treatment under the FCRA as under the final rule. In 2020, the National Human Trafficking Hotline made 8,701 referrals for potential victims of trafficking. 69 For comparison, the FTC received nearly 1.4 million complaints related to identity theft in 2020. 70 Both the number of referrals from the National Human Trafficking Hotline and the number of identity theft complaints to the FTC likely undercount the true incidence of trafficking and identity theft, respectively. However, given that not all victims of trafficking will have adverse information with a consumer reporting agency, it seems reasonable to assume that the annual number of consumer submissions to consumer reporting agencies under the final rule would be at least two orders of magnitude less than the volume similar requests related to identity theft. As a result, the Bureau expects that although the benefits of the final rule to individual consumers who are victims of trafficking may be considerable, the aggregate benefits to consumers and the aggregate costs to consumer reporting agencies are likely to be small. 71

This rule amends 14 CFR part 97 by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained on FAA form documents is unnecessary. This amendment provides the affected CFR sections, and specifies the SIAPs and Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPs, Takeoff Minimums and ODPs as identified in the amendatory language for Part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and Takeoff Minimums and ODP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP and Takeoff Minimums and ODP as modified by FDC permanent NOTAMs.

The SIAPs and Takeoff Minimums and ODPs, as modified by FDC permanent NOTAM, and contained in this amendment are based on criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts.

The circumstances that created the need for these SIAP and Takeoff Minimums and ODP amendments require making them effective in less than 30 days.

Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making these SIAPs effective in less than 30 days.

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

Accordingly, pursuant to the authority delegated to me, Title 14, CFR part 97, (is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and ODPs, effective at 0901 UTC on the dates specified, as follows:

This rule amends 14 CFR part 97 by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, 8260-15B, when required by an entry on 8260-15A, and 8260-15C.

The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their graphic depiction on charts printed by publishers or aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the typed of SIAPS, Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure, and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPS, Takeoff Minimums and/or ODPs as identified in the amendatory language for Part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flights safety relating directly to published aeronautical charts.

The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.

Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making some SIAPs effective in less than 30 days.

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

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:

Background

In response to the interim final rule published on May 13, 2022 (87 FR 29606), which updated and streamlined ONMS regulations, NOAA received eight comments before the end of the comment period on June 13, 2022. The submitted comments are posted at regulations.gov under docket NOAA-NOS-2011-0120. Based on issues raised by some of the public comments, NOAA is preparing technical corrections and responses to those comments for the final rule. Therefore, NOAA is delaying the June 27, 2022 effective date of the interim final rule by 90 days, to September 26, 2022. This action does not extend or reopen the comment period for NOAA's previous request for comments on the interim final rule.

The National Marine Sanctuaries Act (NMSA) authorizes the Secretary of Commerce (Secretary) to designate, manage, and protect, as a national marine sanctuary, any area of the marine environment that is of special national significance due to its conservation, recreational, ecological, historical, scientific, cultural, archeological, educational, or esthetic qualities (16 U.S.C. 1431 et seq. ). NMSA provides the legal basis and serves as the authority under which NOAA issues this action.

A. Background 1. Statutory Authority

Section 104(b)(1) of the CPSIA requires the Commission to assess the effectiveness of voluntary standards for durable infant or toddler products and to adopt mandatory standards for these products. 15 U.S.C. 2056a(b)(1). A mandatory standard must be “substantially the same as” the corresponding voluntary standard, or it may be “more stringent than” the voluntary standard, if the Commission determines that more stringent requirements would further reduce the risk of injury associated with the product. Id.

Section 104(b)(4)(B) of the CPSIA specifies the process for updating the Commission's rules when a voluntary standards organization revises a standard that the Commission previously incorporated by reference under section 104(b)(1). First, the voluntary standards organization must notify the Commission of the revision. Once the Commission receives this notification, the Commission may reject or accept the revised standard. The Commission may reject the revised standard by notifying the voluntary standards organization, within 90 days of receiving notice of the revision, that it has determined that the revised standard does not improve the safety of the consumer product and that it is retaining the existing standard. If the Commission does not take this action to reject the revised standard, the revised voluntary standard will be considered a consumer product safety standard issued under section 9 of the Consumer Product Safety Act (15 U.S.C. 2058), effective 180 days after the Commission received notification of the revision or on a later date specified by the Commission in the Federal Register . 15 U.S.C. 2056a(b)(4)(B).

Under section 104(b)(1) of the CPSIA, the Commission adopted a mandatory rule for infant bath tubs, codified in 16 CFR part 1234. The rule incorporated by reference ASTM F2670-17, Standard Consumer Safety Specification for Infant Bath Tubs, with no modifications. 82 FR 15615 (March 30, 2017). At the time the Commission published the final rule, ASTM F2670-17 was the current version of the voluntary standard.

In July 2018, ASTM notified CPSC that it had issued a revised standard for infant bath tubs, ASTM F2670-18. The Commission concluded that the revisions improved the safety of infant bath tubs. As such, in accordance with the procedures set out in section 104(b)(4)(B) of the CPSIA, the revised standard became the new mandatory standard for infant bath tubs. The Commission published a direct final rule to update 16 CFR part 1234, incorporating by reference ASTM F2670-18, with no modifications. 83 FR 53371 (Oct. 23, 2018).

On March 28, 2022, ASTM notified CPSC that it has again revised the voluntary standard for infant bath tubs, by approving ASTM F2670-22 on March 1, 2022. 1 As discussed in section B. Revisions to ASTM F2670, based on CPSC staff's review of ASTM F2670-22, 2 the Commission will allow the revised voluntary standard to become the mandatory standard because it improves the safety of infant bath tubs. 3 Accordingly, by operation of law under section 104(b)(4)(B) of the CPSIA, ASTM F2670-22 will become the mandatory consumer product safety standard for infant bath tubs on September 24, 2022. 15 U.S.C. 2056a(b)(4)(B). This direct final rule updates 16 CFR part 1234 to incorporate by reference the revised voluntary standard, ASTM F2670-22.

The ASTM standard for infant bath tubs includes performance requirements, test methods, and requirements for warning labels and instructional literature, to address hazards to children associated with infant bath tubs. ASTM F2670-22 contains substantive revisions as well as editorial, non-substantive revisions. Revisions to the standard includes changes to language in the standard describing latching and locking mechanisms ( i.e., mechanisms that prevent the product from folding or collapsing in a manner that puts the occupant at risk) and new marking, labeling, warning, and instructional requirements addressing battery-powered infant bath tubs. This section describes the changes in ASTM F2670-22, as compared to ASTM F2670-18, which is the current mandatory standard, and includes an assessment of those changes.

The general requirement subsection Resistance to Collapse has been renamed Latching and Locking Mechanism(s). Section 5.4.1 has been edited to state that products that fold must have a latching and locking mechanism(s) or other means to prevent the product from folding or collapsing in a manner that puts the occupant at risk of injury by falling out of the product or being subjected to contact or pressure by product components. The standard states that “other means” can include, but are not limited to, designs that utilize the occupant, an added component, or the water that is placed into the product to act in opposition to the folding action or collapse of the product. Latching and locking mechanisms are subject to the same general and performance requirements as required in 16 CFR part 1234 (some non-substantive changes have been made to these requirements).

These changes improve safety, because 16 CFR part 1234 currently does not explicitly require folding infant bath tubs or infant bath tub accessories to have latching and locking mechanisms or “other means” of preventing the product from folding or collapsing.

Revisions to the 2022 standard include the addition of specific marking requirements for products that are battery-operated. Currently, 16 CFR part 1234 does not contain any marking and labeling requirements specifically addressing battery-powered infant bath tubs. Section 8.4.1 of the 2022 standard states that the product's battery compartment, battery compartment door/cover, or area immediately adjacent to the battery compartment must be marked or labeled permanently and legibly to show the correct battery polarity, size, and voltage. Products utilizing one or more non-replaceable batteries are exempt from this requirement. However, Section 8.4.2 states that products utilizing one or more non-replaceable batteries accessible with the use of a coin, screwdriver, or other common household tool shall be marked or labeled permanently and legibly with a statement that the batteries are not replaceable. If marking or labeling the product is not practicable, then this statement shall be in the instructions.

In addition to on-product marking/labeling requirements, ASTM F2670-22 now includes specific warning requirements for battery-powered infant bath tubs and infant bath tub accessories packaging. Section 8.11 states that packages of infant bath tubs and infant bath tub accessories that use replaceable button or coin cell batteries that are 1.5 V or greater and that are larger than 15 mm in diameter but fit within the small parts cylinder (see 16 CFR 1501) shall include the following warning:

Contains button or coin cell battery. Hazardous if swallowed—see instructions. This warning is subject to the formatting requirements found in section 8.5, which contains no substantive changes.

The changes in this section improve safety, as they address battery ingestion hazards, which are not currently addressed by 16 CFR part 1234.

The requirements for instructional literature in ASTM F2670-22 now include cautionary and warning statements specifically for battery-operated products, which are not addressed in 16 CFR part 1234. Section 9.4 Cautionary and Warning Statements now requires that products that operate using replaceable batteries include the following:

To prevent battery leaks, which can burn skin and eyes:

• Remove batteries when storing product for a long time.

• Dispose of used batteries immediately.

• Always replace the entire set of batteries at one time.

• Never mix old and new batteries, or batteries of different brands or types.

ASTM F2670-22 also includes several non-substantive changes, such as spacing and formatting. ASTM also revised the language in the introduction and removed CPSIA from its list of referenced documents to bring the standard into alignment with current Ad Hoc Recommended Language. 4 These changes to the text and formatting do not materially affect the safety of infant bath tubs.

This final rule refers to the single entity, serdexmethylphenidate. The chloride salt of serdexmethylphenidate is chemically known as 3-[[[(1 S )-1-carboxy-2-hydroxyethyl]-amino]carbonyl]-1-[[[[(2 R )-2-[(1 R )-2-methoxy-2-oxo-1-phenylethyl]-1-piperidinyl]carbonyl]oxy]methyl]pyridinium chloride. This rule maintains the placement of serdexmethylphenidate, including its salts, isomers, and salts of isomers, in schedule IV of the Controlled Substances Act (CSA), thereby facilitating the commercial distribution of AZSTARYS as a controlled substance.

Under the CSA, as amended in 2015 by the Improving Regulatory Transparency for New Medical Therapies Act (section 2(b) of Pub. L. 114-89), when the Drug Enforcement Administration (DEA) receives notification from the Department of Health and Human Services (HHS) that the Secretary has approved a certain new drug and HHS recommends control in the CSA schedule II-V, DEA is required to issue an interim final rule (IFR), with opportunity for public comment and to request a hearing, controlling the drug within a specified 90-day timeframe and to subsequently issue a final rule. 21 U.S.C. 811(j). When controlling a drug pursuant to subsection (j), DEA must apply the scheduling criteria of 21 U.S.C. 811(b) through (d) and 812(b). 21 U.S.C. 811(j)(3).

On March 2, 2021, DEA received notification that the United States Food and Drug Administration approved, on that same date, a new drug application for AZSTARYS capsules for oral use, a combination drug product containing serdexmethylphenidate chloride (3-[[[(1 S )-1-carboxy-2-hydroxyethyl]-amino]carbonyl]-1-[[[[(2 R )-2-[(1 R )-2-methoxy-2-oxo-1-phenylethyl]-1-piperidinyl]carbonyl]oxy]methyl]pyridinium chloride) and dexmethylphenidate hydrochloride, for the treatment of Attention Deficit Hyperactivity Disorder in patients six years of age or older. In addition, on that same date, HHS recommended that DEA place serdexmethylphenidate in schedule IV of the CSA. On May 7, 2021, DEA, pursuant to 21 U.S.C. 811(j), published an IFR to place serdexmethylphenidate (including its salts, isomers, and salts of isomers) in schedule IV. 86 FR 24487. The IFR provided an opportunity for interested persons to submit comments, as well as file a request for hearing or waiver of hearing, on or before June 7, 2021. DEA did not receive any requests for hearing or waiver of hearing.

In response to the IFR, DEA received seven comments. The submissions were from individuals or anonymous commenters. Four of the seven commenters were in support of the IFR to place serdexmethylphenidate in schedule IV of the CSA and one commenter was opposed to the placement of serdexmethylphenidate in schedule IV of the CSA. Of the two remaining comments, one had no relevant content and the other was against the scheduling of drugs in general and did not specifically comment on serdexmethylphenidate. This latter commenter associated the scheduling of substances with the “war on drugs,” which according to the commenter “has failed.” No response is necessary for the former comment and the latter comment is outside the scope of this current scheduling action and, therefore, these comments will not be addressed.

Four commenters supported controlling serdexmethylphenidate as a schedule IV controlled substance. These commenters indicated support for scheduling serdexmethylphenidate under the CSA due to its similarity to phentermine, a schedule IV substance. Three of the commenters also recommended monitoring serdexmethylphenidate for increased public health risk or undertaking more clinical research to determine its long-term effects, but did not specify who should perform this monitoring or research. One of these commenters expressed concern about the misuse, including overprescribing, and abuse of stimulant medications in general, and believes that additional prevention measures are needed besides just placing the drug in schedule IV.

DEA Response. DEA appreciates the support for this rulemaking. The requests for additional research or prevention measures suggested by the commenters are outside of DEA's purview. Therefore, DEA has no response to these requests.

One commenter opposed the IFR to control serdexmethylphenidate as a schedule IV drug. The commenter's primary issue with the scheduling of serdexmethylphenidate was that, as a new drug, there was no documented evidence of abuse potential. While the commenter did not completely disagree with the placement of serdexmethylphenidate in schedule IV, the commenter suggested that DEA should “let scientists experiment with it first to determine if it has any beneficial use” or if serdexmethylphenidate is more effective for controlling Attention Deficit Hyperactivity Disorder compared to current drug treatments. Thus, the commenter thought DEA should only schedule serdexmethylphenidate if problems occur. The commenter also referred to ongoing clinical studies for use of this substance in the treatment of Stimulant Use Disorder and the potential for future expansion of its use.

DEA Response: Scheduling a drug does not preclude its use as a therapeutic medication. Substances are scheduled to protect the public health and safety. In addition, substances that are scheduled are subject to regulatory controls and administrative, civil, and criminal sanctions of the schedule that it is placed to allow an adequate supply of controlled substances while preventing those substances from being diverted for illicit purposes. Thus, pursuant to 21 U.S.C. 811(a), the CSA authorizes the Administrator of DEA, under authority delegated by the Attorney General, to control any drug or other substance if it is found that the drug or other substance has a potential for abuse, and makes with respect to such drug or other substance the findings prescribed by 21 U.S.C. 812(b). As discussed in the IFR, after considering the eight factors in 21 U.S.C. 811(c), including consideration of the substance's abuse potential based upon the available information and all relevant data, DEA concluded that serdexmethylphenidate warranted control in schedule IV of the CSA.

The commenter's reference to ongoing clinical studies investigating the usefulness of serdexmethylphenidate in stimulant use disorder and its future therapeutic potential is not relevant. DEA continues to support through this final rule its scheduling determination, and adopts the IFR, without change.

As indicated above, serdexmethylphenidate has been a schedule IV controlled substance by virtue of an IFR issued by DEA in May 2021. Thus, this final rule does not alter the regulatory requirements applicable to handlers of serdexmethylphenidate that have been in place since that time. Nonetheless, for informational purposes, we restate here those requirements. Serdexmethylphenidate is subject to the CSA's schedule IV regulatory controls and administrative, civil, and criminal sanctions applicable to the manufacture, distribution, reverse distribution, dispensing, importing, exporting, research, and conduct of instructional activities and chemical analysis with, and possession involving schedule IV substances, including the following:

1. Registration. Any person who handles (manufactures, distributes, reverse distributes, dispenses, imports, exports, engages in research, or conducts instructional activities or chemical analysis with, or possesses), or who desires to handle, serdexmethylphenidate, must be registered with DEA to conduct such activities pursuant to 21 U.S.C. 822, 823, 957, and 958 and in accordance with 21 CFR parts 1301 and 1312. Any person who intends to handle serdexmethylphenidate, and is not registered with DEA, must submit an application for registration and may not handle serdexmethylphenidate unless DEA approves that application for registration, pursuant to 21 U.S.C. 822, 823, 957, and 958, and in accordance with 21 CFR parts 1301 and 1312. These registration requirements, however, are not applicable to patients (end users) who possess serdexmethylphenidate pursuant to a lawful prescription.

2. Disposal of stocks. Any person who obtains a schedule IV registration to handle serdexmethylphenidate but who subsequently does not desire or is not able to maintain such registration must surrender all quantities of serdexmethylphenidate or may transfer all quantities of serdexmethylphenidate to a person registered with DEA in accordance with 21 CFR part 1317, in additional to all other applicable Federal, State, local, and tribal laws.

3. Security. Serdexmethylphenidate is subject to schedule III-V security requirements for DEA registrants and it must be handled and stored in accordance with 21 CFR 1301.71-1301.77. Non-practitioners handling serdexmethylphenidate must also comply with the employee screening requirements of 21 CFR 1301.90-1301.93. These requirements, however, are not applicable to patients (end users) who possess serdexmethylphenidate pursuant to a lawful prescription.

4. Labeling and Packaging. All labels, labeling, and packaging for commercial containers of serdexmethylphenidate must comply with 21 U.S.C. 825, and be in accordance with 21 CFR part 1302.

5. Inventory. Every DEA registrant who possesses any quantity of serdexmethylphenidate was required to keep an inventory of serdexmethylphenidate on hand, as of May 7, 2021, pursuant to 21 U.S.C. 827 and 958, and in accordance with 21 CFR 1304.03, 1304.04, and 1304.11. These requirements, however, are not applicable to patients (end users) who possess serdexmethylphenidate pursuant to a lawful prescription.

6. Records and Reports. DEA registrants must maintain records and submit reports for serdexmethylphenidate, pursuant to 21 U.S.C. 827 and 832(a), and in accordance with 21 CFR 1301.74(b) and (c) and parts 1304, 1312, and 1317.

7. Prescriptions. All prescriptions for serdexmethylphenidate, or products containing serdexmethylphenidate, must comply with 21 U.S.C. 829, and be issued in accordance with 21 CFR parts 1306 and 1311, subpart C.

8. Manufacturing and Distributing. In addition to the general requirements of the CSA and DEA regulations that are applicable to manufacturers and distributors of schedule IV controlled substances, such registrants should be advised that (consistent with the foregoing considerations) any manufacturing or distribution of serdexmethylphenidate may only be for the legitimate purposes consistent with the drug's labeling, or for research activities authorized by the Federal Food and Drug Cosmetic Act and the CSA.

9. Importation and Exportation. All importation and exportation of serdexmethylphenidate must be in compliance with 21 U.S.C. 952, 953, 957, and 958, and in accordance with 21 CFR part 1312.

10. Liability. Any activity involving serdexmethylphenidate not authorized by, or in violation of, the CSA or its implementing regulations, is unlawful, and may subject the person to administrative, civil, and/or criminal sanctions.

This final rule, without change, affirms the amendment made by the IFR that is already in effect. Section 553 of the Administrative Procedure Act (APA) (5 U.S.C. 553) generally requires notice and comment for rulemakings. However, 21 U.S.C. 811(j) provides that in cases where a certain new drug is: (1) Approved by HHS) and (2) HHS recommends control in CSA schedule II-V, DEA shall issue an IFR scheduling the drug within 90 days. Additionally, subsection (j) specifies that the rulemaking shall become immediately effective as an IFR without requiring DEA to demonstrate good cause. DEA issued an IFR on May 7, 2021, and solicited public comments on that rule. Subsection (j) further states that after giving interested persons the opportunity to comment and to request a hearing, the Attorney General, as delegated to the Administrator of DEA, shall issue a final rule in accordance with the scheduling criteria of 21 U.S.C. 811(b) through (d) and 812(b). DEA is now responding to the comments submitted by the public and issuing the final rule, in accordance with 21 U.S.C. 811(j).

In accordance with 21 U.S.C. 811(a) and (j), this scheduling action is subject to formal rulemaking procedures performed “on the record after opportunity for a hearing,” which are conducted pursuant to the provisions of 5 U.S.C. 556 and 557. The CSA sets forth the procedures and criteria for scheduling a drug or other substance. Such actions are exempt from review by the Office of Management and Budget (OMB) pursuant to section 3(d)(1) of Executive Order (E.O.) 12866 and the principles reaffirmed in E.O. 13563.

This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of E.O. 12988 to eliminate drafting errors and ambiguity, minimize litigation, provide a clear legal standard for affected conduct, and promote simplification and burden reduction.

This rulemaking does not have federalism implications warranting the application of E.O. 13132. The final rule does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

This final rule does not have tribal implications warranting the application of E.O. 13175. It does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612) applies to rules that are subject to notice and comment under section 553(b) of the APA. As noted in the above discussion regarding the applicability of the APA, DEA was not required to publish a general notice of proposed rulemaking. Consequently, the RFA does not apply.

In accordance with the Unfunded Mandates Reform Act (UMRA) of 1995, 2 U.S.C. 1501 et seq., DEA has determined that this action would not result in any federal mandate that may result “in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any 1 year.” Therefore, neither a Small Government Agency Plan nor any other action is required under UMRA of 1995.

This action does not impose a new collection of information requirement under the Paperwork Reduction Act of 1995. 44 U.S.C. 3501-3521. This action would not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

This final rule is not a major rule as defined by the Congressional Review Act (CRA), 5 U.S.C. 804. However, pursuant to the CRA, DEA is submitting a copy of this final rule to both Houses of Congress and to the Comptroller General.

This document of the Drug Enforcement Administration was signed on June 21, 2022, by Administrator Anne Milgram. That document with the original signature and date is maintained by DEA. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DEA Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of DEA. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

The Coast Guard will enforce the special local regulation in 33 CFR 100.902 for the Annual Bayview Mackinac Race from 10 a.m. through 3 p.m. on July 16, 2022. This notice of enforcement is necessary to safely control vessel movements in the vicinity of the race and provide for the safety of the general boating public and commercial shipping. This notice of enforcement applies to all U.S. navigable waters of the Black River, St. Clair River, and lower Lake Huron, bound by a line starting at latitude 042°58′47″ N, longitude 082°26′0″ W; then easterly to latitude 042°58′24″ N, longitude 082°24′47″ W; then northward along the International Boundary to latitude 043°02′48″ N, longitude 082°23′47″ W; then westerly to the shoreline at approximate location latitude 043°02′48″ N, longitude 082°26′48″ W; then southward along the U.S. shoreline to latitude 042°58′54″ N, longitude 082°26′01″ W; then back to the beginning [DATUM: NAD 83].

In order to ensure the safety of spectators and participating vessels, the Coast Guard will patrol the race area under the direction of a designated Coast Guard Patrol Commander (PATCOM). Vessels desiring to transit the regulated area may do so only with prior approval of the PATCOM and when so directed by that officer. The PATCOM may be contacted on Channel 16 (156.8 MHz) by the call sign “Coast Guard Patrol Commander.” Vessels permitted to transit the regulated area will operate at no wake speed and in a manner which will not endanger participants in the event or any other craft. The rules contained above shall not apply to participants in the event or vessels of the patrol operating in the performance of their assigned duties.

This notice of enforcement is issued under the authority of 33 CFR 100.902 and 5 U.S.C. 552(a). If the District Commander, Captain of the Port or PATCOM determines that the regulated area need not be enforced for the full duration stated in this notice, he or she may use a Broadcast Notice to Mariners to grant general permission to enter the regulated area.

The Coast Guard will enforce the special local regulations in 33 CFR 100.703, Table 1 to § 100.703, Item No. 5, for the Sarasota Powerboat Grand Prix/Powerboat P-1 USA, LLC regulated area from 6:30 a.m. until 7 p.m., on July 2, 2022 through July 3, 2022. This action is being taken to provide for the safety of life on navigable waterways during this event. Our regulation for recurring marine events, Sector St. Petersburg, § 100.703, Table 1 to § 100.703, Item No. 5, specifies the location of the regulated area for the Sarasota Powerboat Grand Prix/Powerboat P-1 USA, LLC which encompasses portions of the Gulf of Mexico near Lido beach. During the enforcement periods, as reflected in § 100.703(c), if you are the operator of a vessel in the regulated area you must comply with directions from the Patrol Commander or any designated representative.

In addition to this notice of enforcement in the Federal Register , the Coast Guard plans to provide notification of this enforcement period via the Local Notice to Mariners, marine information broadcasts, or both.

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the Spokane Street Bridge requires immediate action to respond to the potential safety hazards associated with emergency bridge inspection and repair work. It is impracticable to publish an NPRM because we must establish this safety zone by June 24, 2022.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be impracticable because immediate action is needed to respond to the potential safety hazards associated with the emergency stability inspection and repair of the Spokane Street Bridge.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port (COTP) Puget Sound has determined that potential hazards associated with bridge repairs starting June 24, 2022, will be a safety concern for anyone navigating on the West Duwamish Waterway in the vicinity of the Spokane Street Bridge Light List Number 16870.1. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the bridge is being inspected and repaired.

This rule establishes a safety zone from 11 p.m. on June 24, 2022 until 7 a.m. on September 30, 2022. It is subject to enforcement on four occasions: from 11 p.m. on June 24, 2022 until 7 a.m. on June 25, 2022; 11 p.m. on July 8, 2022 until 7 a.m. on July 9, 2022; 11 p.m. on September 23, 2022 until 7 a.m. on September 24, 2022; and 11 p.m. on September 29, 2022 until 7 a.m. on September 30, 2022. The safety zone will cover all navigable waters within a 100-yard radius of the Spokane Street Bridge Light List Number 16870.1. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters while the Spokane Street Bridge is being inspected and potentially repaired. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. Vessel traffic will not be able to safely transit around this safety zone which would impact a small designated area of the Duwamish Waterway. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has 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. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting 4 days that will prohibit entry within a 100-yard radius of the Spokane Street Bridge Light List Number 16870.1 to ensure the safety of all vessels navigating in the vicinity of inspection and repair work on the Spokane Street Bridge. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because we must establish this safety zone by July 1, 2022 and lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Sector Upper Mississippi River (COTP) has determined that potential hazards associated with the fireworks display on July 1, 2022 will be a safety concern for anyone on the Lake of the Ozarks at the designated launch location. This rule resulted from a marine event notification stating that there will be a fireworks display on the Lake of the Ozarks. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone before, during, and after the fireworks display.

This rule establishes a safety zone from 9:30 p.m. until 10:30 p.m. on July 1, 2022. The safety zone will cover all navigable waters within a 200 yard radius of a fireworks launch barge located at MM 42.5 on the Lake of the Ozarks. The duration of this zone is intended to protect personnel, vessels, and the marine environment in these navigable waters before, during, and after the fireworks display. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard assigned to units under the operational control of USCG Sector Upper Mississippi River. The COTP or a designated representative will inform the public of the enforcement date and times for these safety zones, as well as any emergent safety concerns that may delay the enforcement of the zones.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on on size, location, and duration of the temporary safety zones. This action involves a fireworks display at MM 42.5 on the Lake of the Ozarks on July 1, 2022. Moreover, the Coast Guard will publish a Local Notice to Mariners and mariners may seek permission to enter the zones.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has 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. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting only 1 hour that will prohibit entry within a 200 yard radius of a fireworks launch barge. It is categorically excluded from further review under paragraph L60a of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the event sponsor notified the Coast Guard with insufficient time to accommodate the comment period. Delaying the effective date of this rule would be contrary to the public interest and the rule's objectives of protecting safety of life on the navigable waters, including protection of persons competing in the swim event for this triathlon. It is impracticable to publish an NPRM because we must establish this safety zone by July 9, 2022. Delay of the effective date would inhibit the Coast Guard's ability to protect swim competitiors from vessel traffic and all associated hazards that could interfere with the swim area.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Buffalo (COTP) determined that potential hazards to competitors, volunteers and spectators associated with a triathlon swim event occurring on July 9, 2022, will be a safety concern for anyone within a 150-yard radius of the designated swim area. This rule is needed to protect personnel, volunteers, and the marine environment in the navigable waters within the safety zone while the competition is taking place.

This rule establishes a safety zone from 8 a.m. through 11:30 a.m. on July 9, 2022. The safety zone will cover all navigable waters within a 150 yard radius of the center of the designated swim area. The duration of the zone is intended to protect all personnel in these navigable waters while the swim event is taking place. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. Vessel traffic will be able to safely transit around this safety zone which will impact a small designated area of Henderson Harbor for 3.5 hours during the morning. Additionally, vessels will be able to safely transit to the local marina and boat ramp within the harbor without impacting the safety zone. Moreover, the Coast Guard will issue a Broadcast Notice to Mariners via the VHF-FM marine channel 16 about the zone, and the rule will allow vessels to seek permission to enter the zone.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has 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. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting only 3.5 hours that will prohibit entry within 150 yards of the designated swim area. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Memorandum for the Record supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

On March 12, 2022, the organizer of the Red Bull Flugtag Milwaukee notified the Coast Guard that it will be organizing an event in the Milwaukee Harbor on July 16, 2022 from 11:00 a.m. through 4:00 p.m. The marine event will take place in the waters of Milwaukee Harbor adjacent to the south shore of Veterans Park in Milwaukee, WI. In response, on May 12, 2022, the Coast Guard published a notice of proposed rulemaking (NPRM) titled Safety Zone; Red Bull Flugtag, Milwaukee, WI (87 FR 29244). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to this fireworks display. During the comment period that ended June 13, 2022, we received 00 comments.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be impracticable because immediate action is needed to respond to the potential safety hazards associated with the event.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Sector Lake Michigan (COTP) has determined that potential hazards associated with the Red Bull Flugtag Milwaukee event would be a safety concern for anyone within the safety zone that is not participating in the event. The purpose of this rule is to ensure safety of vessels and the navigable waters in the safety zone before, during, and after the scheduled event.

As noted above, we received no comments on our NPRM published May 12, 2022. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.

This rule establishes a safety zone from 9:00 a.m. to 6:00 p.m. on July 16, 2022. The safety zone will cover all navigable waters of Milwaukee Harbor within 800 feet of the southern shoreline of Veterans Park. The duration of the zone is intended to ensure the safety of life and vessels on these navigable waters before, during, and after the event. No vessels or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the characteristics of the safety zone. The safety zone created by this rule is relatively small and is designed to minimize its impact on navigable waters. This rule will prohibit entry into certain navigable waters of Milwaukee Harbor, WI, and it is not anticipated to exceed 9 hours in duration. Thus, restrictions on vessel movement within that particular area are expected to be minimal. Moreover, under certain conditions vessels may still transit through the safety zone when permitted by the COTP Lake Michigan.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received 00 comments from the Small Business Administration on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section IV.A above, this rule will not have a significant economic impact on any vessel owner or operator.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has 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. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting 9 hours that would prohibit entry within a relatively small portion of Milwaukee Harbor. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

The Coast Guard will enforce the Seafair Air Show Performance safety zone in 33 CFR 165.1319 from 10 a.m. until 4 p.m. on August 4th and from 8 a.m. until 5 p.m. on August 5th, 6th, and 7th 2022 unless canceled sooner by the Captain of the Port. The specific boundaries of the safety zone are listed in 33 CFR 165.1319(b).

In accordance with the general regulations in 33 CFR part 165, subpart C, no person or vessel may enter or remain in the zone except for support vessels and support personnel, vessels registered with the event organizer, or other vessels authorized by the Captain of the Port or designated representatives. Vessels and persons granted authorization to enter the safety zone must obey all lawful orders or directions made by the Captain of the Port or his designated representative.

The Captain of the Port may be assisted by other federal, state and local law enforcement agencies in enforcing this regulation.

In addition to this notice of enforcement in the Federal Register , the Coast Guard will provide the maritime community with advanced notification of the safety zone via the Local Notice to Mariners and marine information broadcasts on the day of the event.

If the COTP determines that the safety zone need not be enforced for the full duration stated in this notice of enforcement, he may use a Broadcast Notice to Mariners to grant general permission to enter the regulated area.

On February 19, 2020, VA published a proposed rule in the Federal Register at 85 FR 9435-41, to clarify when an individual providing representation on a claim may access a claimant's automated records now that VA has transitioned to primarily processing VA benefit claims electronically. VA provided a 60-day public comment period and invited interested persons to submit written comments on or before April 20, 2020. In response to the proposed rule, VA received 15 written comments. The commenters included VA-accredited attorneys, law firms, VA-recognized veterans service organizations (VSOs), non-profit corporations, a legal clinic, a law student, and a trade association. In preparing this final rule, VA carefully considered all comments received in response to the proposed rule and addresses them below according to topic. In this final rule, VA focuses its discussion on changes from the proposed revisions based on comments received during the comment period and VA's further consideration of the issues raised by the comments. By clarifying through this rulemaking: (1) who is eligible to apply for remote access to VA IT systems for the purpose of representing, or assisting in the representation of, claimants on their VA benefits claims, and (2) the basic parameters on the privileges that will be granted to the approved VA IT system users, VA will provide transparency to Veterans and beneficiaries as to who may receive information from VA by accessing specific VA IT systems remotely. However, this rule does not change the ability of VA to disclose a claimant's private claim information through other methods to the claimant's appointed attorney or agent of record or to the representatives of the claimant's appointed VSO of record as those who do not seek optional system access under the amended regulations may continue to receive records from VA as provided under the other provisions in 38 CFR part 1. Likewise, the rule does not change the ability of VA to disclose a claimant's private claim information through other methods to certain other individuals under an authorization that is not reliant on representation. See 38 CFR 1.500-1.527 (generally addressing the release of information from VA claimant records).

This rulemaking was necessary because, as several of the commenters pointed out, the regulations, policies, and procedures governing attorneys, agents, and VSO representatives and their staffs' access to the VA IT systems have been applied inconsistently in the past, and it is important that Veterans are aware of who may be able to access their claims information maintained in VA IT systems. VA believes that some of the variation of the application of these regulations, policies, and procedures may be due to the note that follows current 38 CFR 14.629(c), which indicates that systems access to claims records may be provided to legal interns, law students, paralegals, and VSO support staff, who are working under the supervision of an accredited individual designated under § 14.631(a) to represent the claimant. VA is aware that some paralegals, interns, and support staff have been approved for access to Veterans Benefits Management System (VBMS) in the past even though VBMS is not one of the VA IT systems listed in 38 CFR 1.600. VA is also aware that some VA-accredited IT system users and their staffs have been granted broad privileges within VBMS allowing certain users to view records of claimants for whom they do not hold the power of attorney (POA) so long as they are affiliated with the individual attorney or VSO that has been designated as the POA pursuant to 38 CFR 14.631.

VA proposed amending 38 CFR 1.600 through 1.603 to establish that only an individual who is accredited by VA pursuant to 38 CFR 14.629 as an attorney, agent, or representative of a VA-recognized service organization may be granted direct access privileges to VA IT systems, and within those systems, would only be permitted to access the records of claimants for whom that individual holds POA pursuant to 38 CFR 14.631. VA received twelve comments expressing general opposition to such restrictions on access. Most of these commenters urged VA to promulgate a broader rule allowing systems access to individuals who assist in the representation of a claimant before VA, including accredited associate attorneys and agents, paralegals, law students, interns, and other non-lawyer support staff. The commenters also urged VA to allow for more expansive permissions within the systems, to include the ability to view records of claimants for whom the users do not hold the POA as long as the users are affiliated with the individual or organization who does hold the POA. Commenters stated that VA's decision to preclude direct system access to electronic records to individuals who assist in the representation of a claimant before VA would undermine the ability of the appointed attorney and agent to provide competent representation and deprive their clients of critical information. One commenter supported the overall changes and agreed with the spirit of VA's proposed amendments, applauding VA's efforts to ensure that Veterans' data is protected.

VA's objective with this rulemaking continues to be to provide the individual or VSO that is appointed to provide representation on the claim suitable remote access so that individual or VSO may provide responsible, qualified representation consistent with VA's policies. However, the comments have made clear that the office structure of the VA-accredited attorneys and agents has evolved to more of a team environment, and now, attorneys and agents have a strong preference that affiliated attorneys and agents as well as support staff should be able to assist in accessing VA documents on behalf of the claimants that the accredited attorney or agent is representing. VA recognizes that limiting systems access to the sole practitioner designated as the representative of record on the VA Form 21-22a, Appointment of Individual as Claimant's Representative, may hamper VA's goals to streamline the appeals process and to transition from a cumbersome, paper-intensive process to an efficient electronic environment in order to provide a faster, more accurate and transparent claims process. In response to these comments and upon further consideration, VA revises the framework of the proposed rule by broadening access to claimants' electronic records to certain individuals assisting in the representation of a claimant before VA. VA believes that the security risk posed to the VA IT systems and the information within them can be largely managed through internal policies and added safeguards. Such safeguards include regular, recurring reviews of who has access and under what circumstances, plus recurring certifications of training and acknowledgments of system rules by all users.

Additionally, in the future, VA will consider whether it will be helpful or necessary to add provisions to VA's standards of conduct maintained at 38 CFR 14.632 as further safeguards. In advocating for systems access for individuals who assist in the representation of claimants, ten commenters pointed out that 38 U.S.C. 5904(a)(2) instructs VA to prescribe in regulations “qualifications and standards of conduct” consistent with the American Bar Association's Model Rules of Professional Conduct (Model Rules) and asserted that the Model Rules contemplate the use of paralegals and other support staff and charge attorneys with supervising responsibility. Although VA does not believe that the Model Rules must control VA's policy decisions on systems access management and accountability, VA does recognize their value as a way to ensure that individuals who practice before VA do so in a responsible and ethical manner or risk losing their VA accreditation.

VA amends 38 CFR 1.600 through 1.603 to, as proposed, confirm its policy that individuals who are accredited by VA pursuant to 38 CFR 14.629 as an attorney, agent, or representative of a VA-recognized VSO may be granted direct access privileges to specific VA IT systems. However, based on the comments received, VA further amends those regulations beyond the proposed rule to allow similar access to some staff members who are affiliated with recognized VSOs and VA-accredited attorneys or claims agents. In addition, within those VA IT systems: (1) VA-accredited VSO representatives will be permitted to access the records of claimants for whom their VSO holds POA pursuant to 38 CFR 14.631; (2) VA-accredited attorneys and agents will be permitted to access the records for claimants for whom they hold the POA; and (3) in some instances, the users—including VA accredited attorneys and agents, their support staff, and the support staff of VSOs—who receive systems access will be able to view records for claimants for whom the users may not directly hold the POA as long as the users are affiliated with the individual or recognized VSO that does hold the POA and, in the case of an attorney or agent, the claimants represented by that individual have provided their consent to such access on the VA Form 21-22a, Appointment of Individual as Claimant's Representative.

Additionally, VA is expanding the provision of direct access privileges to specific VA IT systems to qualifying individuals providing representation under 38 CFR 14.630 of this chapter pursuant to special authority granted by VA's General Counsel to represent more than one claimant. Section 14.630 permits any person complying with the regulation to prepare, present, and prosecute one claim. But, unless an exception is granted by VA's General Counsel under § 14.630(b), such representation may be provided only one time. An exception to this one-time limitation may be granted by the General Counsel in unusual circumstances. To help facilitate responsible, qualified representation by individuals authorized to practice before VA under this special authority, we are revising the proposed amendments to 38 CFR 1.600 through 1.603 to permit systems access to individuals to whom the General Counsel has granted such an exception. VA believes that permitting the possibility of systems access to qualifying individuals with such an authorization would be consistent with the purpose of this rulemaking.

In revising the proposed language to accommodate systems access for qualifying support staff and individuals authorized by the General Counsel under § 14.630, VA has modified proposed § 1.600(b)(1) by removing the reference to an attorney, agent, or representative of a recognized VSO “who is accredited pursuant to part 14 of this chapter.” This does not mean that access will be provided to individuals in those categories who are not accredited. The requirement for accreditation as a prerequisite for individuals in those categories is still contained under qualifications for access in amended § 1.601(a). This is because the statement in § 1.600(b)(1) that VA will provide access only to the categories of attorney, agent, representative of a recognized VSO, support-staff person, or individual authorized by the General Counsel under § 14.630 of this chapter is qualified by the rest of the paragraph “who is approved to access VA IT systems under §§ 1.600 through 1.603.”

VA choosing to allow additional individuals to access specific VA IT systems and to broaden the access permitted within the VA IT systems to individuals who are affiliated with the accredited individual or recognized VSO that holds the POA means that the individual or VSO holding the POA will have heightened responsibilities that extend further than just their own individual access, in terms of ensuring the confidentiality, integrity, and availability of the information that is stored, processed, and transmitted by VA within its systems. Specifically, VA has amended 38 CFR 1.603(c)(7)(ii) to provide that if the access of an affiliated support-staff person of an attorney or agent is revoked, VA will consider whether to refer the matter to VA's Office of General Counsel for potential inquiry into the principal individual's conduct or competence, pursuant to 38 CFR 14.633.

VA proposed the removal of the note to current 38 CFR 14.629 to clarify policy. The note that follows current 38 CFR 14.629 states that a legal intern, law student, and paralegal, as well as VSO support staff, “may qualify for read-only access to pertinent Veterans Benefits Administration automated claims records” under 38 CFR 1.600 through 1.603. Although VA prevailed in recent litigation concerning the meaning of the note and is continuing with the removal of the note, VA believes the changes from the proposed rule throughout §§ 1.600-1.603 to expand access and privileges satisfy the commenters concerns about systems access for the categories of individuals contemplated by the note.

Finally, while revising the amendatory language of the proposed rule, VA recognized a typographical error in the introductory paragraph of current § 1.600(d). VA is correcting that error by changing “14.603” to “1.603”.

VA received five comments discussing access to various VA business applications for electronic claims processing, such as the Veterans Benefits Management System (VBMS), Caseflow, Share, and Compensation and Pension Record Interchange (CAPRI). Because all these applications may provide information regarding the current status of a claim or appeal but are systems with significant differences in functionality and underlying purpose—for example, VBMS is a document repository, other systems, such as Share, are not—questions arise regarding to which applications this rule governs access.

VA has revised language proposed in § 1.600(a)(1) that referred to access to “[VBA IT] systems” to refer instead to “ specific VA [IT] systems” (emphasis added) to permit VA to provide access to the electronic claims folder as it specifically decides. VA had proposed removing references to specific systems and instead described affected IT systems more generally to “ensure VA's regulations stay current regardless of future IT developments and to allow VA flexibility to provide access to only those IT systems which are necessary to providing representation while minimizing risk to IT system integrity and privacy.” 85 FR at 9437. However, although VA has in recent years successfully defended in court its ability to determine systems access under the current regulations, the wide range of systems discussed by the commenters made VA concerned that in future litigation a court could have found the proposed language “[VBA's] electronic information technology (IT) systems that contain information regarding the claimants whom they represent before VA” unambiguous and included a specific system to which VA did not intend, or want, to provide access.

In the introductory text of paragraph (b), VA has identified the specific systems VBMS and Caseflow (the eFolder Express and Queue products) to which VA will provide access. VA will provide access to VBMS because that was the current IT system VA contemplated in the proposed rule. See 85 FR at 9436 (noting that the rulemaking was being done in part “to provide increased access to claimant's records” in VBMS and that “a VA-accredited attorney [had] petitioned VA to initiate a rulemaking for purposes of clarifying whether attorney support staff could gain access to VBMS in the same manner as the attorney of record in the claim”); see also Carpenter v. McDonough, 34 Vet. App. 261 (2021) (discussing, among other things, the petition for rulemaking, the proposed rule, and numerous arguments advocating for VBMS access for unaccredited paralegals under the existing regulations).

VA will provide access to the eFolder Express product of Caseflow because VA recognizes that the functionality of eFolder Express is directly related to a claimant's VBMS eFolder. The Caseflow eFolder Express product permits downloading of all the files in a claimant's VBMS eFolder in chronological order by date of document receipt with the most recent date at the top of the list. Caseflow is a Board of Veterans' Appeals (Board) IT system, not a VBA IT system (as contemplated in the proposed rule), but multiple commenters indicated that attorneys have been provided access to Caseflow products, and one commenter specifically advocated for VA to provide access to eFolder Express. Also, although the proposed rule only proposed permitting access to VBA IT systems, the proposed rule did refer to Caseflow. 85 FR at 9436 (“Other systems, such as Caseflow, are not document repositories, but may provide information regarding the current status of the claim or appeal, such as whether it is pending the development of evidence, pending a decision, etc.”). VA believes that providing access to eFolder Express matches VA's goals in providing access to VBMS. Moreover, providing access to eFolder Express ensures that practitioners will not be overly reliant on VA's systems ( e.g., such as by treating the records accessed through VA systems but not downloaded as their own records). VA will also provide access to Queue, another Caseflow product mentioned by one of the commenters, which provides information regarding the status of some appeals, because providing such access also matches VA's goals in providing access to VBMS.

VA has specified the only systems to which access will be granted under these regulations. Systems to which VBA does not have administrative rights, such as CAPRI, which was mentioned by one of the commenters, are not included. (Notably, although Caseflow is a Board IT system, VBA personnel have administrative rights for providing access.) Further, although there are additional systems that VBA does administer, VA is only providing access to VBMS and the Caseflow products eFolder Express and Queue because other systems provide substantially duplicative information and any gaps are being evaluated for migration to VBMS. For example, VBA will not give access to the Share application. One commenter indicated that they use Share to review payments and ensure clients receive proper payment amounts. This information is now available in VBMS rendering the Share application redundant.

Finally, although proposed § 1.600(a)(1) had only referred to providing access to claimant records, VA is further revising § 1.600(a)(1) to clarify that qualifying individuals may obtain access to basic information regarding the status of claims or appeals in addition to (read-only) access to claimants' records. VA is making this change because, as several of the commenters noted, VBMS does provide some basic information regarding the status of claims or appeals. Likewise, VA has modified the language proposed in § 1.602(a) to add a reference to “obtain[ing] basic claims status information.”

VA received one comment stating that the provision in proposed 38 CFR 1.601(a)(2) regarding a background suitability investigation for issuance of a personal identity verification (PIV) card was not necessary for attorneys who are members in good standing of a State bar because these individuals have already met a State's character and fitness requirements. VA declines to exclude attorneys in good standing from the requirement for a background investigation as part of the qualifications for systems access under the final rule. VA is required to implement the use of PIV cards for logistical access to VA networks and information systems. See Homeland Security Presidential Directive-12. In accordance with Office of Management and Budget (OMB) guidance, VA must ensure the initiation of a background investigation and more specifically, either a National Agency Check with Written Inquiries or one that is at least equivalent. See 44 U.S.C. 3554; OMB Circular A-130, Managing Information as a Strategic Resource. To comply with OMB's guidance and meet the specific background criteria, VA is unable to accept certificates of good standing as a substitute for conducting its own suitability investigation.

The same commenter also disagreed with the provision in proposed 38 CFR 1.602(c)(1) allowing VA to inspect computers including hardware and software utilized to obtain systems access. This commenter suggested adding safeguards to the provision to limit the scope and the basis of VA's ability to inspect privately-owned equipment containing confidential information. This inspection provision is not a new requirement but part of the current regulation and its predecessor since being promulgated in 1994. See 59 FR 47082, 47084-85 (Sept. 14, 1994). Moreover, the requirement to permit such inspection is embedded in the information security requirements to which VA must adhere (identified in the proposed rule, see 85 FR at 9436) and applies to anyone, whether an employee or non-employee, with access to VA IT systems. Its purpose is to protect the integrity of the network and the sensitive information of Veterans, so VA plans no changes to this long-standing policy and subsection based on the comment.

There is no law that requires VA to provide claimants' representatives or their support staff access to VA IT systems, and there is no expectation of privacy when accessing VA IT systems. To gain access to VA-specific IT systems, the applicant must agree to general rules of behavior. These rules acknowledge the right of authorized IT personnel to periodically inspect devices, systems, or software used to obtain access to VA's network. They also include the ability of VA to periodically inspect a remote location for compliance with required security requirements. Approval of the hardware and software ensures the necessary security for systems access. Approval of the location ensures that access is only from the non-VA-employee's customary and usual or primary place of business, and not from other locations, which might place confidential information at risk of exposure. To properly oversee access activities that provide for the security of the data and systems, VA may, without notice, inspect systems and monitor access activities. VA employs a team of network security experts to monitor and safeguard its systems and databases. Therefore, VA will not change proposed § 1.602(c)(1) based on the comment.

Two commenters commented on the revocation and reconsideration process set forth in 38 CFR 1.603. Both commenters stated that the process should include notice and an opportunity to be heard before the revocation of systems access and should specify a time frame for VA's decision on reconsideration. One of these commenters also stated that the level of detail specified for the reconsideration decision should be included in the initial final decision. The other commenter recommended that VA provide a more robust procedure for appealing an adverse decision by providing specific standards for what factors are analyzed in the reconsideration process and how this process would work in practicality.

VA has carefully considered these comments, particularly in the context of the existing regulation and proposed amendments. Notably, the proposed rule would have eliminated current § 1.603's provision of notice of a proposed revocation but retained, in proposed § 1.603(d), VA's ability to suspend an individual's systems access if there were exigent circumstances. That combination is somewhat incongruous. VA believes the exigent circumstances provision provides sufficient protection for VA systems and the data therein if VA determines that there is a credible risk of harm. Therefore, VA can provide notice of a proposed revocation and permit an optional response as requested by the commenters, albeit, subject to the possibility on an immediate suspension of systems access under the exigent circumstances provision in paragraph (d), which specifies that the immediate suspension may take place prior to any determination on the merits of a proposed revocation. Accordingly, VA has added language to provide in paragraph (c)(1) that VA will generally notify the attorney, agent, representative of a recognized VSO, or individual authorized by the General Counsel under 38 CFR 14.630 of the proposed denial or revocation and allow 30 days for an optional response. As suggested by one of the commenters, VA has also added language, in paragraph (c)(2), providing that the initial decision will describe in detail the facts found and state the reasons for VA's final decision, matching in pertinent aspects the content proposed for any decision on reconsideration. VA declines the commenters' request to add a time frame for decisions on access. VA cannot predict the time it will take to issue a decision because that will vary based on the variety of facts and circumstances of each particular case. But VA believes that adding the provision for a proposed notice of revocation fairly addresses some of the concern inherent in the commenters' request that VA specify a time frame for the decision on reconsideration. Under the proposed regulation, the first opportunity to respond to a revocation of access was in the reconsideration phase, likely triggering the commenters' concern about a time frame for a VA decision based on that response. Now, there will be an opportunity to respond to a proposed revocation prior to further VA action unless the exigent circumstances provision applies. (In the exigent circumstances provision, VA has also added an opportunity to respond, similar to language in current § 1.603's exigent circumstances provision but excluded from proposed § 1.603(d).) Likewise, VA believes this change makes the revocation process generally “more robust” as urged by one of the commenters. Under the current regulation, there is a proposed revocation but no reconsideration of a final decision. Under the proposed regulation, there was no proposed revocation. Under the amended regulation, there will be a revocation proposal before further action by VA unless the exigent circumstances provision applies, a decision, and the opportunity for reconsideration of a revocation. As to the commenter's specific description of a more robust procedure—providing specific standards for what factors are analyzed in the reconsideration process and how this process would work in practicality—VA has also added, in paragraph (c)(2), a standard of proof, the preponderance of the evidence, for the decisions. VA is not making any other changes in response to the commenter's suggestion for further specification because that specification already exists in other parts of the regulations. A revocation or denial of systems access is necessarily premised on a failure to meet a requirement or abide by a rule.

One commenter requested clarification on whether the proposed amendments could be interpreted as prohibiting VSO support staff from receiving VA network access altogether for those organizations co-located with a VA regional office. The commenter asked VA to include a statement in this rulemaking confirming that co-located administrative support staff for VSOs will continue to be able to utilize basic VA IT functionality. This rulemaking is limited in scope and does not apply to or restrict the basic IT functionality currently provided to administrative support staff for VSOs, co-located within VA regional offices. Therefore, VA made no changes in response to this comment.

One commenter suggested a minimum of thirteen months of incarceration as a penalty for mishandling a claimant's personal information. While VA understands the commenter's desire to deter such misconduct, this comment refers to criminal provisions that are not included in this rulemaking and, therefore, cannot be addressed by this action.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. The Office of Information and Regulatory Affairs has determined that this rule is not a significant regulatory action under Executive Order 12866. The Regulatory Impact Analysis associated with this rulemaking can be found as a supporting document at www.regulations.gov.

The Secretary hereby certifies that the adoption of this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601-612). This final rule might have an insignificant economic impact on an insubstantial number of small entities, generally, law firms that have individual attorneys who are accredited by VA for purposes of representing VA benefit claimants. VA believes the impact to be minimal because access to VA systems is optional and not a prerequisite to representing any claimant before VA. Therefore, under 5 U.S.C. 605(b), the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply.

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

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

There are no assistance listing program numbers and titles for this rule.

Pursuant to Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (known as the Congressional Review Act), 5 U.S.C. 801 et seq., the Office of Information and Regulatory Affairs designated this rule as not a major rule, as defined by 5 U.S.C. 804(2).

Denis McDonough, Secretary of Veterans Affairs, approved this document on June 6, 2022, and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs.

For the reasons set forth in the preamble, VA amends 38 CFR parts 1 and 14 as follows:

Throughout this document “we,” “us,” and “our” refer to EPA.

The EPA is taking final action to approve Missouri's revisions to 10 Code of State Regulation (CSR) 10-6.050, Start-Up, Shutdown, and Malfunction Conditions, which relate to reporting of SSM events in the Missouri SIP. On April 7, 2022, the EPA published a notice of proposed rulemaking (NPRM) which proposed to approve the SIP revision as submitted by Missouri on February 11, 2020 (87 FR 20367). The EPA received two comments from one commenter during the public comment period. The EPA's summary of those comments and our responses is contained in Section III of this document.

As described in section IX.H.3 of the February 2013 Federal Register document in which EPA analyzed specific SSM SIP provisions and explained how each one either did or did not comply with the Clean Air Act (CAA), EPA reviewed the Missouri rule at issue in this action because it was included in a Sierra Club petition. 1 Sierra Club argued that this Missouri provision gave state personnel authority to determine where enforcement action should be taken based on information a source submits about excess emissions resulting from a malfunction, start-up or shutdown. In EPA's final action, EPA denied the petition on this provision and affirmatively found the provision to be consistent with the 2015 policy “on the basis that the provision is on its face clearly applicable only to Missouri state enforcement personnel and that the provision thus could not reasonably be read by a court to foreclose enforcement by the EPA or through a citizen suit where Missouri state personnel elect to exercise enforcement discretion.” As a result, Missouri rule, 10 Code of State Regulation (CSR) 10-6.050, Start-Up, Shutdown, and Malfunction Conditions, was not included in the 2015 SSM SIP Call. Because the Missouri submittal does not substantively alter this rule, EPA's previous conclusions relating to this provision's compliance with EPA's SSM policy remain unchanged. Further background information for this action can be found in Section III of EPA's NPRM.

These provisions in the SIP require the reporting of SSM events to the Missouri Department of Natural Resources (MoDNR). Specifically, the provisions set the time by which such notification must occur, define what constitutes an SSM event, and establish the required contents of the written report including but not limited to measures taken to mitigate the extent and duration of the excess emissions, measures taken to remedy the situation which caused the excess emissions and the measures taken or planned to prevent the recurrence of these situations.

The EPA received the MoDNR's SIP revision submission on February 11, 2020. The EPA's full analysis of the revisions can be found in the technical support document (TSD) included in this docket.

In 10 CSR 10-6.050 Section (2) Definitions, the state incorporated definitions for “excess emissions” into subsection (A), “malfunction” into subsection (B), “shutdown” into subsection (C), and start-up into subsection (D). The definitions in the revision are the same as the definitions in the SIP approved 10 CSR 10-6.020. The revisions to Section (2) Definitions also move language about definitions not included in 10 CSR 10-6.050 into subsection (E). Because the language was already SIP-approved, and because the definitions relate to requirements related to informational reporting on SSM events, EPA finds that these revisions do not affect the stringency of the SIP. The rule revisions also include minor word changes, which are administrative in nature and do not affect the stringency of the SIP.

EPA finds that approving these revisions into the Missouri SIP is consistent with EPA's policy as further described in EPA's NPRM.

The State submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. The State provided public notice on this SIP revision from June 3, 2019 to July 3, 2019 and received 6 comments. Five comments were from industry groups and one comment was from EPA. The industry comments all related to reporting excess emissions as soon as possible. Ultimately, the State opted not to include additional language to this effect and maintained that notification must occur within two days. The EPA comment letter indicated that EPA did not have comments on the rule changes. Therefore, the state adequately addressed each comment. In addition, as explained above and in more detail in the NPRM and technical support document (TSD) which is part of this document, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

On April 7, 2022, the EPA published a NPRM which proposed to approve the SIP revision as submitted by Missouri on February 11, 2020 (87 FR 20367). The public comment period on the EPA's proposed rule opened April 7, 2022 and closed on May 9, 2022. During this period, EPA received two comments from one commenter.

Comment 1: The commenter stated that the EPA did not call for a revision of 10 CSR 10-6.050 in the EPA's June 12, 2015 final rule titled “State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls To Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown and Malfunction,” (80 FR 33839, June 12, 2015). The commenter stated that EPA found that the provision clearly applies only to Missouri state enforcement at the time of rulemaking. The commenter agreed the provision should apply only to state enforcement but believes the provision could be clarified to reduce any chance that it would interfere with citizen or EPA enforcement.

Response 1: EPA agrees that if a state chooses to maintain state provisions related to SSM events, such provisions should be clear that they do not limit federal enforcement or citizen suit authority in order to be consistent with Clean Air Act requirements. Missouri's revisions to this rule which EPA proposed to approve in the NPRM were limited to largely administrative changes, such as removing unnecessary words and adding in rule-specific definitions. Missouri did not request revisions to the remainder of the SIP-approved rule text; therefore the unchanged portions of the rule text were not at issue in this action. For these reasons, the comment on the clarity of this rule language with respect to federal enforcement or citizen suit authority is outside the scope of this action.

Further, as the commenter acknowledges, EPA previously found the provision in this action to not limit federal enforcement or citizen suit authority and therefore did not find it to be substantially inadequate to meet CAA requirements for the purposes of the 2015 SSM SIP Call. This prior EPA determination was open to notice and comment through EPA's 2015 SSM SIP Action, so commenters had a full opportunity to weigh in on this issue previously. As made clear in the proposal and restated here, EPA is not reopening the determination made in the 2015 SSM SIP Action in this rulemaking.

Comment 2: The commenter stated that the EPA determined a provision in Missouri's Restriction of Emission of Visible Air Contaminants rule, 10 CSR 10-6.220(3)(C), was substantially inadequate to meet CAA requirements in the 2015 SSM SIP Call setting a deadline for the state to respond to the SIP Call of November 22, 2016. The commenter further stated that the SIP-called 10 CSR 10-6.220(3)(C) remains in effect because EPA has not yet acted on Missouri's responsive November 2016 submittal. The commenter urges EPA to address this unlawful loophole that is years overdue.

Response 2: EPA acknowledges this comment, though it does not raise any issue adverse to this current rulemaking. This comment is related to a different state rule and submission in front of the Agency for action. Therefore, this comment is outside the scope of this action. Although outside the scope of the present rulemaking, EPA notes that consistent with CAA section 113(g), the EPA recently published a proposed consent decree including a deadline by which EPA must finalize action on Missouri's 2016 submission responding to EPA's 2015 SSM SIP Call (87 FR 21118, Case No. 21-cs-6956). EPA anticipates taking expeditious action on Missouri's 2016 responsive submittal but no later than the date which will be set by the final consent decree when entered by the Court.

The EPA is taking final action to amend the Missouri SIP to incorporate revisions to state rule 10 CSR 10-6.050, Start-Up, Shutdown, and Malfunction Conditions, related to reporting of SSM events, in the Missouri SIP as submitted to EPA on February 11, 2020. On April 7, 2022, the EPA published a NPRM proposing to approve Missouri's February 11, 2020, SIP revision submittal (87 FR 20367). The EPA sought public comment on the NPRM and received two comments from one commenter. The EPA's responses to comments received is included in Section IV of this document. The EPA is taking final action after consideration of the comments. Approval of these revisions will ensure consistency between State and federally approved rules. As described in the NPRM and the TSD, the EPA has determined that these changes meet the requirements of the CAA and will not adversely impact air quality or the stringency of the SIP.

In this document, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the Missouri rule 10 CSR 10-6.050 described in Section I of this preamble and set forth below in the amendments to 40 CFR part 52. The EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 7 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Therefore, these materials have been approved by the EPA for inclusion in the State Implementation Plan, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of the EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 2

Under the Clean Air Act CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of the National Technology Transfer and Advancement Act (NTTA) because this rulemaking does not involve technical standards; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

• In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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

• Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 23, 2022. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as set forth below:

This is a summary of the Commission's document, Order on Reconsideration, MB Docket No. 15-146, GN Docket No. 12-268; FCC 22-35, adopted and released on May 11, 2022. The full text of this document can be accessed online via the Commission's Electronic Comment Filing System (ECFS) at: https://apps.fcc.gov/ecfs and is available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat via ECFS and at https://www.fcc.gov/document/fcc-affirms-closure-vacant-channel-proceeding . To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty). The Commission will not send a Congressional Review Act (CRA) submission to Congress or the Government Accountability Office pursuant to the CRA, 5 U.S.C. 801(a)(1)(A), because no rules are being adopted by the Commission.

In this Order on Reconsideration, the Commission denies the Petitions for Reconsideration filed by Sennheiser Electronic Corporation (Sennheiser) and Shure Incorporated (Shure) (collectively, Petitioners) requesting reconsideration and reversal of a Commission Report and Order, 86 FR 9297 (Feb. 12, 2021), 35 FCC Rcd 14272 (2020) ( Termination Order ) that declined to adopt rules proposed in a 2015 Notice of Proposed Rulemaking, 80 FR 38158 (July 2, 2015), 30 FCC Rcd 6711 (2015) ( 2015 NPRM ), to preserve a vacant channel in the television (TV) bands for use by white space devices and wireless microphones and terminated the proceeding.

As the Commission held in the Termination Order, it finds that adoption of the rules proposed in the 2015 NPRM would not strike the most reasonable balance that would best serve the public interest. The Commission makes this determination in light of other actions taken by the Commission since the 2015 NPRM that will support wireless microphone users and the burdens that the proposal would impose on broadcasters. The Commission also reaffirms the conclusions it reached in the Termination Order that the steps the Commission has taken in other proceedings since the 2015 NPRM provide a better alternative for addressing the needs of wireless microphone providers than through efforts to preserve a vacant channel in light of the burdens the vacant channel proposal would impose on broadcasters. Because it agrees that the totality of these circumstances support the findings in the Termination Order, the Commission rejects the Petitioners' claim that the its action was arbitrary and capricious.

The Commission recognizes the Petitioners' preference for UHF TV band spectrum to the alternatives adopted to assist the wireless microphone operations, but does not find sufficient grounds to reconsider the Commission's conclusion not to pursue the 2015 NPRM . The Commission notes that the Termination Order does not find that the other proceedings to support spectrum access for wireless microphones are a perfect substitute for the UHF TV band spectrum. The Commission also notes that its decision not to pursue the 2015 NPRM did not lessen the spectrum access that wireless microphones currently enjoy in the TV band and indeed the Commission has continued to find ways, and additional spectrum, to accommodate wireless microphones in the future outside of the crowded TV bands. Furthermore, technical issues raised by Petitioners and commenters related to the differences between spectrum in the TV band and other bands have been considered in other dockets, the Commission explains. Moreover, although not necessary to support the Commission's decision to terminate this proceeding, the Commission also notes that it continues to explore these issues in pending proceedings.

In weighing those needs, the Commission further affirms that it reasonably concluded that the 2015 vacant channel proposal would impose undue burdens on the broadcast users of the TV band. The Commission finds that it adequately weighed the needs of all spectrum users, and supported its decision not to pursue the proposals in the 2015 NPRM for several reasons, including changed circumstances since 2015 and the alternate initiatives taken by the Commission since 2015.

The Commission also agrees with its prior decision that the proposal would impose undue burdens on broadcasters “both in congested areas where a vacant channel may not be available in the television band and in less congested areas where more spectrum is available such that analysis is not warranted.” As the National Association of Broadcasters (NAB) and a number of individual broadcasters noted in their 2015 comments, the Commission explains that adoption of the proposed rules would serve to freeze full power stations in place and hamstring their ability to expand or innovate to better serve their viewers. And the proposal would require “novel engineering studies” that “would be expensive and time-consuming, particularly for smaller broadcasters” where “the cost of conducting such studies is likely to be multiples of current engineering design costs.” Significantly, television stations would bear the administrative burden of studying and proving the availability of channels for other users in order to receive approval of an application that is otherwise grantable in the public interest. The Commission concludes it properly decided “not [to] deviate from previous Commission decisions that use of the TV bands by primary and secondary broadcast users have priority over wireless microphones and white space devices.” Further, although Petitioners' opine that the adoption of the 2015 proposals would not hinder the development of ATSC 3.0 (the TV transmission standard developed by the Advanced Television Systems Committee) service by broadcasters, including new and innovative uses of broadcast spectrum that the ATSC 3.0 standard enables, the Commission explains that it believes that it properly balanced concerns raised in the record that the proposed rules would hamstring the ability of broadcasters to innovate. Petitioners' support of a scheme that would forgo the nationwide solution proposed by the Commission and sought by proponents of the 2015 NPRM would not ameliorate cost and regulatory compliance burdens for licensed broadcasters, the Commission concludes.

The Commission acknowledges Shure's assertion that the 2015 NPRM was an integral part of a multi-proceeding effort to support wireless microphones and that it was contemplated that the Incentive Auction would result in changed circumstances. The Commission does not, however, believe these factors mandate reconsideration. As described herein, the Commission continues to balance and support various spectrum users' needs in multiple proceedings balancing all the facts and circumstances and concludes that the actions taken in other proceedings to make spectrum available for wireless microphones have achieved the balance sought in the Incentive Auction Report and Order, 79 FR 48441 (Aug. 15, 2014), 29 FCC Rcd 6567 (2014), while also addressing the needs of licensed broadcast stations displaced by the Incentive Auction. For the same reason, the Commission does not believe that Sennheiser's insistence that the Commission pursue the 2015 NPRM' s proposals in addition to the other proceedings supporting wireless microphones mandates reconsideration.

While the focus of the 2015 NPRM was on a nationwide vacant channel solution, Petitioners contend that a non-nationwide solution would also benefit wireless microphones and thus the inability to achieve a nationwide solution does not justify termination of the proceeding. The Commission disagrees. A non-nationwide vacant channel solution would necessarily provide fewer benefits than the proposal as originally conceived without diminishing any of the burdens on broadcasters, especially in rural areas without adequate multichannel video programming distributor (MVPD) and broadband service alternatives, and if anything would therefore further support the Commission's balance of the needs of the various spectrum users.

The Commission also rejects Shure's unsupported argument that the Commission erred by unanimously adopting the Termination Order during the “lame duck” transition period after the national presidential election, which resulted in a change of the party with control over administrative agencies. Shure's argument is unavailing because it lacks any legal support and, in any event, is now moot because the Commission rejects the Petitions on the merits.

Market analyses provided by Shure and Sennheiser purporting to indicate vacant channel availability in major designated market areas (DMAs) does not support reconsideration, according to the Commission. Neither submission alters the Commission's conclusion in the Termination Order that TVStudy software reveals that there are numerous major metropolitan areas in the United States that have no vacant, 6 MHz channels. In its petition, Shure describes an “independent preliminary analysis of channel availability” that it conducted using a tool that it developed to “calculate[ ] vacant channel availability after drawing information from the FCC TV database.” Using the tool, Shure compiled a list of channels it claims are vacant in the top 10 DMAs. But the “preliminary analysis” is flawed, the Commission finds. For example, channels listed as available in multiple markets, including the two listed for Houston, two for Dallas, two for Los Angeles, and one for Chicago, do not qualify as vacant channels because they are adjacent to land mobile. Others, including the remaining channels listed for Dallas, Los Angeles, and Chicago also do not qualify as vacant channels because they are identified in LPTV or Class A construction permits or licenses. Similarly, Sennheiser's ex parte purportedly “update[d] the Commission on new developments” to offer a data analysis. On the basis of that analysis, it asserts that, with the exception of Phoenix, Arizona, “in almost every major DMA in the United States, there is a vacant channel that could be designated for wireless microphones.” This analysis is also unconvincing, the Commission concludes. First, by identifying Phoenix as a market that lacks a vacant channel, the ex parte concedes that the Commission was correct in its assertion in the Termination Order that a nationwide vacant channel solution in the TV band as proposed in the 2015 NPRM is no longer possible. Furthermore, the analysis described in the ex parte is flawed for several reasons, and therefore it does not undermine the assertion in the Termination Order that numerous major metropolitan areas have no vacant 6 MHz channels. First, the analysis is inaccurate in stating that certain channels are available. For example, the ex parte assertion that channel 16 in Salt Lake City is available overlooks a displacement construction permit issued for that channel. Second, the analysis incorrectly assumes that the identification of an available channel in a specific location demonstrates that the channel could be preserved across an entire DMA. Again, the example of channel 16 in Salt Lake City is illustrative, as the Salt Lake City DMA includes the entire state of Utah and portions of neighboring states. Within that DMA a number of TV translators occupy channel 16, which would disqualify the channel as vacant throughout the entire DMA. Third, some of the channels that the ex parte identifies as available in large markets, such as New York and Los Angeles, could not be deemed vacant for the purposes of the 2015 NPRM proposals because those channels have land mobile reservations on adjacent channels. Finally, the ex parte analysis was performed using a third-party tool found on an internet web page that utilizes standards that are not consistent with Commission rules to protect TV operations from wireless microphones, which in many cases will overstate channel availability as compared to what was proposed in the 2015 NPRM and is not a reliable method for evaluating the Vacant Channel proposal.

In summary, and consistent with the public interest analysis in the Termination Order, while the Commission recognizes the important benefits provided by wireless microphones in the TV bands, it finds that other actions that the Commission has taken to support these users subsequent to issuance of the 2015 NPRM provide a better alternative for addressing their needs than through efforts to preserve a vacant channel in light of the burdens the vacant channel proposal would impose on broadcasters. The Commission agrees with the conclusion in the Termination Order that it can no longer say that the 2015 NPRM' s proposals “will not significantly burden broadcast applicants.” In light of changed circumstances, the Commission concludes that it should not deviate from previous Commission decisions that use of the TV bands by primary and secondary broadcast users have priority over wireless microphones and white space devices. The Commission believes that preserving robust over-the-air broadcast television service remains an important spectrum allocation priority, especially to rural areas without adequate MVPD and broadband service alternatives. The Commission continues to recognize the promise of next generation ATSC 3.0 service by over-the-air television broadcasters to expand the universe of potential uses of broadcast spectrum capacity for new and innovative services in ways that will complement the nation's burgeoning 5G networks and usher in a new wave of innovation and opportunity. Having restructured the TV band, the Commission finds that to now adopt a requirement that primary and/or secondary television stations protect spectrum availability for wireless microphones in the smaller, more densely packed television band, would not serve the public interest. Therefore, the Commission finds that, on balance, seeking to preserve a vacant channel at this time, considering all of the actions that the Commission has taken since 2015 to promote wireless microphones interests, are outweighed by the burdens of the proposals on broadcasters.

The Commission therefore affirms the its decision in the Termination Order to decline to adopt the proposals of the 2015 NPRM and to terminate this docket, and disagrees with Petitioners that the Commission's rejection of the 2015 NPRM warrants reconsideration.

For the reasons stated above, the Commission denies the Petitions filed by Sennheiser and Shure requesting reconsideration and reversal of the Termination Order and declines to adopt rules proposed in the 2015 NPRM to preserve a vacant channel for use wireless microphones use.

Accordingly, it is ordered that, pursuant to sections 1, 4(i), 4(j), 303(r), and 405 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 303(r), 405 and § 1.429 of the Commission's rules, 47 CFR 1.429, the captioned Petitions for Reconsideration are denied , for the reasons discussed herein.

It is further ordered that, should no petitions for reconsideration or petitions for judicial review be timely filed, MB Docket No. 15-146 shall be terminated and the docket closed.

Background

On January 20, 2021, the President issued Executive Order (E.O.) 13990, which, in section 2, required all executive departments and agencies to review Federal regulations and actions taken between January 20, 2017, and January 20, 2021. In support of E.O. 13990, a “Fact Sheet” was issued that set forth a non-exhaustive list of specific agency actions that agencies are required to review to determine consistency with the policy considerations articulated in section 1 of the E.O. (See www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/ ). Among the agency actions listed on the Fact Sheet was our December 16, 2020, final rule promulgating a regulatory definition for the term “habitat” (85 FR 81411) under the Endangered Species Act of 1973, as amended, 16 U.S.C. 1531 et seq. (hereafter, “the Act”). Following our review of this rule (the “habitat definition rule”), we determined it was unclear and confusing and inconsistent with the conservation purposes of the Act, and we subsequently published a proposed rule to rescind it (86 FR 59353, October 27, 2021). We solicited public comments on the proposed rule through November 26, 2021. In response to several requests, we extended the deadline for submission of public comments to December 13, 2021 (86 FR 67013, November 24, 2021).

The December 2020 final rule defined “habitat” as follows: For the purposes of designating critical habitat only, habitat is the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species. The definition itself indicates that it applies only in the context of designating “critical habitat,” which is defined in section 3(5)(A) of the Act as specific areas within the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 4 of this Act, on which are found those physical or biological features essential to the conservation of the species and which may require special management considerations or protections; and as specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 4 of this Act, upon a determination by the Secretary that such areas are essential for the conservation of the species.

The two types of critical habitat described in this statutory definition are often referred to as “occupied” and “unoccupied” critical habitat, respectively, and for simplicity, we use those shorthand terms within this document. The Secretaries (of Commerce and the Interior) designate critical habitat for threatened and endangered species on the basis of the best scientific data available and after taking into consideration various impacts of the designation (16 U.S.C. 1533(b)(2)). Once critical habitat is designated, section 7(a)(2) of the Act requires Federal agencies to ensure that actions they authorize, fund, or carry out are not likely to destroy or adversely modify that habitat (16 U.S.C. 1536(a)(2)). Critical habitat requirements do not apply to actions on private land that do not involve the authorization or funding of a Federal agency.

On January 14, 2021, one day before the rule took effect, seven environmental groups challenged it, filing suit against the Services in Federal district court in Hawaii. Shortly thereafter on January 19, 2021, 19 States similarly filed suit challenging the habitat definition rule in the Northern District of California. Parties in both cases have agreed to long-term stipulated stays in the litigation as this rulemaking proceeds.

Following consideration of all public comments received in response to our proposed rule to rescind the habitat definition, and for reasons outlined both in our proposed rule (86 FR 59353, October 27, 2021) and this document, we have decided to rescind the regulatory definition of “habitat.” We acknowledge that, in coming to this final decision to rescind the regulatory definition of “habitat,” we are changing our position on some aspects of the rationale underpinning the definition's adoption; accordingly, we have provided explanations for why rescission of the definition is appropriate.

As indicated in our initial proposed rule to define the term “habitat,” the impetus for developing the regulatory definition was the decision by the U.S. Supreme Court in Weyerhaeuser Co. v. U.S.F.W.S., 139 S. Ct. 361, 372 (2018) (hereafter, “ Weyerhaeuser” ) (85 FR 47333, August 5, 2020). The relevant holding in that case that prompted our rulemaking was: “An area is eligible for designation as critical habitat under § 1533(a)(3)(A)(i) only if it is habitat for the species.” The Court's decision in Weyerhaeuser did not address what should or should not qualify as habitat, nor did it require the Services to adopt a regulatory definition of “habitat.” Rather, the Court remanded the case to the lower court to consider whether the particular record supported a finding that the area disputed in the litigation was habitat for the particular species at issue (the dusky gopher frog). This dispute, however, was never resolved by any court. The Services subsequently adopted a regulatory definition of “habitat,” stating our intent was to provide transparency, clarity, and consistency for stakeholders (85 FR 81411, December 16, 2020). We have reconsidered the habitat definition rule and considered public comments, and we now conclude that codifying a single definition in regulation could impede the Services' ability to fulfill their obligations to designate critical habitat based on the best scientific data available. For reasons further outlined below, we find that it is instead more appropriate, more consistent with the purposes of the Act, and more transparent to the public to determine what areas qualify as habitat for a given species on a case-by-case basis using the best scientific data available for the particular species.

First and most problematically, the definition and statements made in the December 2020 final rule are in tension with the conservation purposes of the Act because they could inappropriately constrain the Services' ability to designate areas that meet the definition of “critical habitat” under the Act. As indicated by the plain text of the Act and as supported by extensive case law, critical habitat is defined to include areas that are essential to the recovery of listed species; critical habitat is not limited to areas that merely support the survival of the species ( Gifford Pinchot Task Force v. U.S. Fish and Wildlife Serv., 378 F.3d 1059, 1070 (9th Cir. 2004); Sierra Club v. U.S. Fish and Wildlife Serv., 245 F.3d 434, 442 (5th Cir. 2001); Center for Biological Diversity v. Kelly, 93 F. Supp. 3d 1193, 1201 (D. Idaho 2015)). In order to fulfill the intended objective of critical habitat, the Services should be able to designate unoccupied areas as critical habitat if those areas fit within any reasonable biological understanding of “habitat” as established by the best available scientific data for a particular species, and if such areas are essential for the recovery of the species. However, the “habitat” definition rule did not afford the Services this ability in all cases. The preamble to the final rule stated that the “habitat” definition excludes areas that do not currently or periodically contain the requisite resources and conditions, even if such areas could meet this requirement in the future “after restoration activities or other changes occur” (85 FR 81411, p. 81413, December 16, 2020). Thus, the “habitat” definition rule eliminated from possible designation as critical habitat any area that does not “currently or periodically” contain something deemed a necessary “resource or condition” even though it would do so as a result of natural transition following a disturbance ( e.g. fire or flood), in response to climate change, or after reasonable restoration. Because most species are faced with extinction as a result of habitat degradation and loss, it is more consistent with the purposes of the Act to avoid limiting the Services' ability to designate critical habitat to protect the habitats of listed species and support their recovery.

While we acknowledge that we can revise critical habitat designations after resources and conditions change ( e.g., the area is restored or naturally improves), Congress required the Services to identify unoccupied areas that are “essential for the conservation” of the species based on the best available scientific data when designating critical habitat (16 U.S.C. 1533(b)(2)). Identifying those areas by applying the best available science for the given species and its habitat, rather than delaying until an arbitrary point in time when conditions that are not required under the Act's definition are realized, better fulfills the conservation purposes of the Act, and ensures that important areas of habitat are protected from destruction or adverse modification. In other words, we find that a better reading of the Act, consistent with the statutory mandate to apply the best available science, is that an area should not be precluded from qualifying as habitat because some reasonable restoration or alteration, whether through reasonable human intervention or natural processes, is necessary for it to support a species' recovery. Rather, we find that relying on the best available scientific data, including species-specific ecological information, is the best way to determine whether areas constitute habitat and may meet the definition of “critical habitat” for a species. We note that this key concern with the “habitat” definition regarding its excessive constraint on the Services' ability to designate critical habitat under the Act cannot be remedied by issuing guidance on how to interpret the regulatory definition. Because a regulation is binding, we cannot remedy a problematic regulation through issuance of guidance. Further, interpretive guidance could not cure the statutory tension we have identified between the “habitat” definition and the conservation purposes and mandates of the Act.

Secondly, the habitat definition rule is not clear and thus does not achieve the ambitious goals of providing transparency and reproducibility of outcome. Application of the habitat definition fundamentally relies on subjective interpretations with respect to which areas would or would not qualify as habitat and, therefore, would or would not be eligible for designation as critical habitat under the Act. This conundrum would not be resolved by simply revising the current definition or resorting to another available definition. As we stated in the proposed rule to rescind the definition, prior to adopting the definition, we reviewed and considered many definitions, both from the ecological literature ( e.g., Odum 1971, Kearney 2006) and from numerous public comments. The resulting definition was one that neither stemmed from the scientific literature nor had a clear relationship to the statutory definition of “critical habitat.” Instead, in order to codify a sufficiently generalized definition that would cover a wide array of species' habitat requirements and simultaneously satisfy the underlying need to encompass unoccupied critical habitat as defined under the Act, the definition relied on overly vague terminology. Its terms were neither clear nor sufficiently informative to allow for any conclusions to be reached about whether a particular area would be considered habitat for a particular species. This outcome would also inescapably be the case for any regulatory definition of the term “habitat,” which would need to be rather generic in order to encompass the wide range of species the Services must manage. Such a definition would have little to no practical value within the context of designating critical habitat, which is a specific subset of a species' habitat.

Although unintended at the time the definition was finalized, we used terminology that is unclear, has no established meaning in the statute or our prior regulations or practices ( e.g., “abiotic and biotic setting” and “resources and conditions necessary to support”), and unavoidably competes with elements of the statutory definition of critical habitat ( e.g., “physical or biological features essential to the conservation”). It is unclear, for example, how “resources and conditions” would be distinguished from the “physical and biological features” referenced in the statutory definition of “critical habitat.” Unlike terminology within the statutory definition of “critical habitat” ( e.g., “geographical area occupied by the species” and “physical and biological features essential to the conservation of the species”) for which interpretations have been established through extensive practical application and implementing regulations (see 50 CFR 424.02), terminology in the “habitat” definition has no clearly established meanings or interpretations.

Because the terms have no clearly established meanings in either the scientific or legal contexts, they would be subject to various interpretations that could not be resolved simply by referring to the explanations that were included in the preamble of the final rule for the definition. For instance, it remains unclear how an area would be judged as containing or not containing all of the “resources and conditions” that are “necessary to support” a life process of the species, and how application of that terminology would be affected by how much is known about a given species. Knowing that a species occurs in a particular type of habitat does not necessarily equate to there being a scientific understanding of what resources and conditions in that area support a particular life process of that species. Given these ambiguities, we conclude that, despite our efforts to promulgate a definition that was both sufficiently broad and clear, the resulting definition is inadequate to achieve clarity or any practical value in assisting the Services or the public in better understanding what specific areas constitute habitat for a given species. This lack of clarity is also reflected in the public comments received that raised similar concerns, or suggested revisions or alternative definitions, as well as those that expressed opposing assertions that the definition was either too vague or too narrow. Furthermore, as stated above, interpretive guidance to address the lack of clarity would not remedy our primary concern with the “habitat” definition as outlined earlier ( i.e., that it inappropriately constrains the Services' ability to designate critical habitat under the Act),

In addition, the lack of clarity and potential for confusion extend to how the Services would use, or be required to use, the “habitat” definition. As we indicated when we adopted the “habitat” definition, by adding this definition to the Code of Federal Regulations, we did not intend to create an additional step in the process of designating critical habitat for all species (85 FR 81411, December 16, 2020). Rather, our intent was that this definition would act as a regulatory standard that primarily would be relevant in a limited set of cases where questions arose as to whether any of the unoccupied areas that we are considering designating as critical habitat qualify as habitat (85 FR 81411, p. 81414, December 16, 2020). (Such questions do not arise for the large majority of critical habitat designations, because most designations involve only “occupied” critical habitats, which are inherently “habitat” for that species.)

However, based on comments received in response to the proposal to rescind the habitat rule, it appears that this intention was either misinterpreted or considered incorrect. Some commenters appear to expect that, with the habitat rule in place, the Services would need to apply and document consideration of the regulatory definition in all instances when undertaking critical habitat designations, whether the areas were occupied by the listed species or not. Thus, and as we stated in our proposed rule to rescind the definition, we find that the approach of codifying a regulatory definition of “habitat” that was not intended to have a practical effect in the majority of designations in the course of designating critical habitat is inherently confusing (86 FR 59353, October 27, 2021). Rescinding the rule will eliminate this confusion and prevent the potential evolution of an additional, unnecessary procedural step that would likely only impede and complicate the Services' ability to fulfill their responsibilities under the Act to designate critical habitat.

Having reconsidered the definition as prompted by E.O. 13990 and in light of the considerations discussed herein, we conclude that the definition is unhelpful, unnecessary, and improperly and excessively constrains the Services' authority under the statute, and it is more appropriate to evaluate and determine what areas qualify as habitat (and that may as a separate matter be potentially also critical habitat) by considering the best available science for the particular species, the statutory definition of “critical habitat,” our implementing regulations, and existing case law. Therefore, we are removing and not replacing the definition of “habitat” from 50 CFR 424.02. Nevertheless, we recognize the importance of the Supreme Court's ruling in Weyerhaeuser and intend to designate as critical habitat only areas that are habitat for the given listed species. We will ensure that the administrative records for particular designations include an explanation for why any unoccupied areas are habitat for the species.

By the close of the public comment period on December 13, 2021, we received just under 13,000 public comments on our proposed rule to rescind the regulatory definition of “habitat.” Comments were received from a range of sources including individual members of the public, States, Tribes, industry organizations, legal foundations and firms, and environmental organizations. The vast majority of the comments received (~12,400) were nearly identical statements from individuals indicating their general support for rescission of the rule but not containing substantive content. During the public comment period, we received a request for public hearings. However, public hearings are not required for regulations of this type and we elected not to hold public hearings.

All public comments were reviewed and considered prior to developing this final rule. Summaries of substantive comments and our responses are provided below. Similar comments are combined where appropriate. We did not, however, consider or respond to comments that are not relevant to and are beyond the scope of this particular rulemaking. For example, we did not discuss and respond to comments regarding the FWS' proposed rule to rescind regulations regarding section 4(b)(2) of the Act (see 86 FR 59346, October 27, 2021), previous versions of the Services' regulations in 50 CFR part 424, consistency of potential future land use actions by the FWS with State management plans, consultations between FWS and State management agencies, or general concerns regarding State versus Federal control as it relates to implementation of the Act ( e.g., listing species and designating critical habitat).

Comment 1: Numerous commenters stated they supported the proposal to rescind the habitat definition rule. Commenters stated the habitat definition rule should be rescinded because it is unnecessary, creates confusion, and could lead to absurd outcomes by excluding degraded habitats or habitats not yet occupied by the species from designation as critical habitat. Some commenters also stated that the habitat definition rule could hinder the Services from designating ephemeral habitats or areas where the precise resources and conditions are not well understood. Other commenters stated that the habitat definition rule violates the conservation purposes of the Act, was arbitrary and capricious under the Administrative Procedure Act, and its issuance violated the National Environmental Policy Act.

Response: As discussed more fully above, we share many of these concerns; as a result, we are rescinding the habitat definition rule.

Comment 2: Some commenters asserted that rescinding the habitat regulation will result in longer timelines and more litigation on critical habitat designations. Such delays would in turn lead to delays in Federal permitting and increased costs for infrastructure and other projects.

Response: The Services disagree that rescinding the habitat regulation will increase litigation, extend timelines for designating critical habitat, delay Federal permitting, or increase costs for projects. The Services note there is already ongoing litigation on the existing regulation's definition of “habitat” and, because the definition is highly controversial, its application in any future critical habitat designations would likely generate additional litigation and potential delays. Basing critical habitat designations on the best available scientific data as determined on a case-by-case basis will likely result in less litigation than designating critical habitat by applying a regulatory definition that is in tension with the Act's definition of “conservation” and inappropriately constrains the Services' ability to designate critical habitat.

Comment 3: Several commenters asserted that rescinding this regulation will affect the reliance interests of those who rely on this regulation now, and the rescission will be disruptive and result in added costs. One commenter, however, stated that rescission of the habitat rule would not impose any undue hardship because they were unaware of any reliance interests on the current definition and because previous interpretations of critical habitat were well understood.

Response: This regulation became effective on January 15, 2021. On January 20, 2021, the President issued E.O. 13990 and an associated Fact Sheet with a non-exhaustive list of agency actions, directing the Services to review the habitat rule and other regulations. The Services publicly announced on June 4, 2021, that they would propose to rescind the habitat definition rule. In the proposal to rescind the rule, the Services did not identify any affected reliance interests ( i.e., instances of a third party making a decision in reliance on application of the definition) because they were unaware that any existed, especially due to the rule's limited practical applicability and the limited time it has been in effect. Although several commenters expressed the possibility that there may have been reliance on the definition of “habitat,” none provided any specific examples of actual reliance, nor did any articulate why such reliance would have been reasonable given the limited time that elapsed between the rule's effective date and when it was identified for reconsideration. The regulatory definition has been in place for a relatively short time and has a potential bearing only on unoccupied areas. (As we explained in the final rule establishing the habitat definition, if an area is occupied by the species and meets the statutory definition for “occupied” critical habitat (which includes, notably, a requirement that physical or biological features essential to the conservation of the species be present), then as a matter of logic and rational inference, the area must also be habitat for the species (85 FR 81411, December 16, 2020).) Most of the Services' designations do not involve “unoccupied” critical habitat. As a result, the regulatory habitat definition has been relevant to only a small number of designations and was not determinative in the areas identified as critical habitat in those designations. Therefore, we have no basis to conclude that rescinding this definition and relying on the best available scientific data on a case-by-case basis will affect any reliance interests.

Comment 4: Some commenters stated the lack of a definition for “habitat” will place an increased burden on Service employees who will have to make independent assessments about habitat for each critical habitat designation. These commenters stated that those drafting critical habitat designations will now be required to demonstrate not only that the proposed designation of critical habitat meets the statutory definition of critical habitat, but also that the rule ensures that independent meaning is given to the term “habitat,” and that such meaning is consistent with the Act. The commenters asserted that this consideration is a heavy and inappropriate burden to place on an employee.

Response: Removing the regulatory definition of “habitat” will not place an increased burden on employees when designating critical habitat. The Services must make an independent assessment of areas occupied by the species as well as unoccupied areas that are essential for that species' conservation when we designate critical habitat regardless of whether “habitat” is defined in regulation. In addition, as noted in the final rule promulgating the definition, areas are inherently considered habitat for the species if they are occupied by the species and also meet the definitional elements of “critical habitat” provided in the statute. Although the Services agree that all critical habitat must be habitat, in practice, the regulatory definition would be relevant only in determining whether unoccupied areas that are essential for the conservation of the species constitute habitat for the species.

Comment 5: Several commenters expressed concerns about regulatory takings should the habitat definition rule be rescinded. These comments asserted that determinations that private lands are habitat, and more consequentially critical habitat, place onerous restrictions on those lands or result in the Services withholding permits to develop the land, and that rescinding the habitat definition rule would increase those uncompensated, unlawful regulatory takings exponentially. In particular, these commenters were concerned that rescinding the definition would allow the Services to designate critical habitat where the species could not currently survive and place the burden of restoring the area on the private landowner. Commenters stated that, consistent with case law addressing the Fifth Amendment's Takings Clause ( e.g., Nollan v. California Coastal Commission, 483 U.S. 825 (1987); Dolan v. City of Tigard, 512 U.S. 374 (1994); and Koontz v. St. Johns River Water Management District, 570 U.S. 595 (2013)), the Federal Government cannot impose conditions on land use permits that require the private landowner to mitigate adverse effects on the habitat where the necessary habitat features are lacking, and that retaining the habitat definition would help ensure avoidance of such Takings Clause violations.

Response: The rescission of the regulatory definition of “habitat” will not allow for unlawful takings by the Services as described by the commenters. In making future critical habitat designations, the Services will adhere to the Supreme Court's ruling in Weyerhaeuser that an area may be designated as critical habitat only if it is habitat for that species. The requirement to avoid the destruction or adverse modification of critical habitat applies to actions on private land only when they involve Federal authorization or Federal funding. Where an action does implicate authorization or funding by a Federal agency, any resulting section 7 consultation under the Act on the designated critical habitat would then consider the effects of the particular proposed action ( e.g., issuance of a land-use-related permit) to ensure the critical habitat is not likely to be destroyed or adversely modified by the action. Even a finding that the action was likely to destroy or adversely modify the critical habitat would not result in an unlawful taking, because that finding would not require the Federal action agency or the landowner to restore the critical habitat or recover the species, but rather to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat. Rather than imposing an affirmative requirement that Federal actions improve critical habitat, section 7(a)(2) prohibits Federal actions from reducing the critical habitat's existing capacity to conserve the species (Final Rule Establishing Definition of “Destruction or Adverse Modification” of Critical Habitat, 81 FR 7214, p. 7224, February 11, 2016; extending to the adverse-modification analysis the conclusion in Nat'l Wildlife Fed'n v. National Marine Fisheries Service, 524 F.3d 917, 930 (9th Cir. 2007), that agency action can only violate section 7(a)(2) of the Act “if that agency action causes some deterioration in the species' pre-action condition”). In other words, the requirement for Federal agencies to ensure their actions are not likely to result in destruction or adverse modification of critical habitat is a prohibitory standard only; it does not mandate affirmative restoration of habitat.

Comment 6: Multiple commenters stated that rescinding the regulatory definition of “habitat” will undermine conservation, particularly in areas that currently lack the necessary resources and conditions to support the particular listed species. These commenters were concerned that rescission of the habitat definition will discourage habitat restoration or even create a perverse incentive for private landowners to make their land less hospitable for listed species in an effort to avoid the economic impacts due to the stigma effect associated with critical habitat designation. Commenters also stated that rescinding the habitat definition will increase the fears of private landowners that their land could be deemed habitat and designated as critical habitat, and as a result these landowners would be less likely to cooperate in conservation efforts or allow access for surveys and studies that could benefit recovery planning. Commenters noted that critical habitat is not a good tool for encouraging landowners to create habitat features and that non-regulatory approaches to habitat conservation would provide a greater benefit to listed species.

Response: Commenters have provided no basis upon which the Services could conclude that the act of rescinding the regulatory definition of “habitat” will discourage conservation or create a new, “perverse” incentive for landowners to modify their land in order to make it less hospitable for listed species. In the absence of the regulatory habitat definition, we will still be required to designate critical habitat based on the best scientific data available and after taking into consideration the economic, national security, and other relevant impacts of designating any particular area as critical habitat. Pursuant to the joint Policy Regarding Implementation of Section 4(b)(2) of the ESA (“Section 4(b)(2) Policy,” 81 FR 7226, February 11, 2016), we will consider areas covered by conservation agreements or plans when assessing the benefits of including and excluding particular areas from a designation. In particular, the Services consider whether such conservation plans are already providing on-the-ground conservation that would reduce the benefit of designating the same area as critical habitat. Our approach of excluding from designations of critical habitat areas that are subject to voluntary conservation agreements and plans will continue to provide a substantial incentive to private landowners. Rescinding the habitat definition will in no way alter this process or how conservation plans and agreements affecting private lands are weighed when assessing the benefits of designating an area as critical habitat.

To the extent that any “perverse incentives” may exist with regard to modifying habitat conditions on private lands, it has been the Services' experience that these attitudes persist regardless of any specific regulation. Discussion in the final habitat definition rule implied that an area would qualify as habitat only if the area, without any restoration, currently has all of the requisite resources and conditions necessary to support the species (85 FR 81411, p. 81413, December 16, 2020). Thus, the Services find that with the habitat rule in place, it is equally, and likely more, plausible that the actions suggested in the comments would occur to prevent the particular area from becoming suitable habitat for a particular listed species and thereby eligible for designation as critical habitat. We also note that some of the cases cited by the commenters demonstrate that deliberate modification of areas to make private property less hospitable to listed species has sometimes occurred previously in response to species' listings under the Act—and not directly in response to, or in potential avoidance of, a critical habitat designation. Rescinding the regulatory definition of “habitat” has no effect on whether species are listed under the Act and therefore unlikely to have an effect on any such behaviors and attitudes.

Lastly, we emphasize that, in undertaking critical habitat designations, the Services will proceed in light of the Supreme Court's ruling in Weyerhaeuser that “[s]ection 4(a)(3)(A)(i) does not authorize the Secretary to designate [an] area as critical habitat unless it is also habitat for the species” (139 S. Ct. at 368). Rescinding the regulatory definition of “habitat” does not undermine this holding or the requirement that the Services adhere to it.

Comment 7: A commenter asserted that continuing to rely on the concept of habitat as reflected in the regulatory definition would improve communication with scientists and nonscientists, thereby benefiting conservation efforts. The commenter suggested that rescinding the definition would allow for other interpretations of “habitat” and that those other interpretations could allow for increased miscommunication, misinterpretation of scientific findings, limited comparability among studies, and inefficient use of conservation resources.

Response: The regulatory definition of “habitat,” which only applied to the designation of critical habitat, had no bearing on the comparability of studies or communication of scientific findings, nor did it prohibit the use or development of other definitions of the term “habitat.” Rescinding this rule will therefore not alter or exacerbate those issues where they may exist. Rescinding this rule may also allow the Services to better prioritize their limited conservation resources by removing an inappropriate limitation on their ability to designate as critical habitat, and therefore bring attention to, areas that are essential for the conservation and recovery of threatened and endangered species.

Comment 8: Several commenters said the rescission of the definition of “habitat” will increase regulatory uncertainty for landowners, stakeholders, and the public and would undermine the transparency, clarity, and consistency the definition provides. Some commenters noted that their industries need clarity and consistency in the application of the Act to be able to forecast the costs and timing of projects and expressed concern that, without a definition, the Services will return to designating critical habitat in an arbitrary or inconsistent way. One commenter asserted that a definition of “habitat” is necessary to inform the designation of critical habitat. Other commenters supported the rescission because doing so would eliminate confusion and uncertainty regarding critical habitat designations, as the definition is not consistent with the Services' past practice.

Response: Rescission of the definition of “habitat” will not increase regulatory uncertainty or undermine the transparency, clarity, and consistency of the critical habitat designation process. As discussed previously, the definition is in tension with the statutory definition of “critical habitat,” and is vague and confusing, such that interested landowners would not be able under the definition to confidently conclude whether any particular area would be considered “habitat.” Furthermore, applying the 2020 definition would leave future critical habitat designations open to continual challenge because that definition is in tension with the statute and inappropriately constrains our ability to designate as “critical habitat”—thus creating greater regulatory uncertainty. In addition, as discussed previously, the habitat definition rule is not clear and thus does not achieve the intended goals of providing transparency and reproducibility of outcome. Application of the habitat definition would fundamentally rely on subjective interpretations with respect to which areas would or would not qualify as habitat and, therefore, would or would not be eligible for designation as critical habitat under the Act. Given the complexity and variety of factual information pertaining to each individual species that the Services must consider, it is not possible for perfect predictability in determining what areas constitute habitat. We do not agree that implementing a case-by-case approach will result in inconsistent application of the statutory definition of critical habitat. Our critical habitat designations are governed by the requirements of the Act, our regulations, the best scientific data available, and applicable court decisions, which results in substantial consistency in approach and application.

Comment 9: One commenter noted they agreed that the habitat needs for a specific species should be determined on a case-by-case basis but disagreed that a regulatory definition of “habitat” constrains the Services from making such determinations. They also said the Services should codify a straightforward and consistent process for defining the habitat needs for individual species.

Response: As a result of our review of the habitat definition rule, we determined there are significant shortcomings with its definition of “habitat,” as well as, more broadly, fatal flaws inherent in the approach of attempting to devise any single regulatory definition that would apply to all species. As we outlined in detail in the preceding “Rationale for Rescission of the Habitat Definition Rule” section of this document, we conclude that the definition is unhelpful, unnecessary, and improperly constrains the Services' authority under the statute, and it is more appropriate to evaluate and determine what areas qualify as habitat and potentially also as critical habitat by considering the best available science for the particular species, the statutory definition of “critical habitat,” our implementing regulations, and existing case law. In addition, any definition that would satisfy the underlying requirement that it encompass unoccupied critical habitat as defined under the Act, would need to be overly general and non-specific such that it would provide no added clarity, transparency, or regulatory certainty as to how particular areas would be understood in relation to particular species. Determinations of whether a particular area is habitat for a particular species must be tailored to consideration of the particular species' needs and how they interact with their environments, issues which vary tremendously across species and are not subject to meaningful generalization. As a result of the series of issues we have identified, we have concluded it is appropriate to rescind and not replace the definition. With regard to codifying a process for defining the habitat needs of species, our regulations at 50 CFR 424.12(b) specify a straightforward and consistent process by which we identify specific areas to be designated as critical habitat, including identification of those features of the habitat that are essential to the conservation of the species.

Comment 10: Multiple commenters expressed concern that, without the “habitat” definition, the Services will have carte blanche to decide what qualifies as habitat and is thus eligible for designation as critical habitat. Commenters also expressed concern that rescission of the “habitat” definition will lead to increased designation of unoccupied critical habitat. Some commenters asserted that the Services would return to previous practices that, in the commenters' view, “over-designated” areas and applied the Act's definition of “critical habitat” under the premise that any area that meets that definition must also be habitat.

Response: Rescinding the “habitat” definition does not grant the Services carte blanche to designate any area as critical habitat, nor does it alter our authorities for designating critical habitat. We will continue to adhere to the Supreme Court's ruling in Weyerhaeuser that any area that is designated as critical habitat must also be habitat. All designations must conform to the requirements and standards of the Act, our regulations, and applicable case law, and are reviewable by courts if challenged. We will continue to comply with the Act, which states in section 3(5)(C) that, except in circumstances determined by the Secretary, critical habitat shall not include the entire geographical area which can be occupied by the threatened or endangered species. We will also continue to comply with the other applicable statutory and regulatory requirements that govern how the Services may designate occupied and unoccupied critical habitat, including the requirements of section 4(b)(2) of the Act to base designations on the best scientific data available and after taking into account the impacts of designating any particular area (16 U.S.C. 1533(b)(2)).

Comment 11: Several commenters asserted that to be consistent with the Supreme Court's decision in Weyerhaeuser it is necessary to have a definition of “habitat” that establishes that an area cannot be considered habitat if the species cannot survive there. Commenters asserted that returning to “case-by-case” determinations disregards this requirement.

Response: Rescinding this regulatory definition is not inconsistent with the Supreme Court's decision in Weyerhaeuser. As we noted previously in both the 2020 final rule (85 FR 81411, December 16, 2020) as well as in the proposed rule to rescind the “habitat” definition rule (86 FR 59353, October 27, 2021), the Court's decision did not require that the Services adopt a regulatory definition for “habitat.” Rather, the Court remanded the case to the lower court to consider whether the particular record supported a finding that the unoccupied area disputed in the litigation was habitat for the particular species at issue (the dusky gopher frog). The Court did not address what conditions may be necessary for an area to be considered habitat, nor did it state that an area can be considered habitat only if the species can survive there. Although the Services initially, if somewhat reflexively, concluded that the best response to the Supreme Court decision was to craft a new layer of regulation, we now conclude that that extra layer of regulation was not in fact a helpful response. The Services have concluded that we can adequately address, on a case-by-case basis and on the basis of the best scientific data available, any concerns that may arise in future designations as to whether unoccupied areas are habitat for a particular species. The administrative record for each designation will carefully document how the designated areas are in fact habitat for the particular species at issue, using the best available scientific information and explaining the needs of that species.

Comment 12: Multiple commenters stated their views that, to qualify as habitat, areas must be habitable or capable of sustaining the species in its present condition. Commenters asserted that this interpretation is consistent with the present tense language used by Congress to describe critical habitat in sections 3 and 4 of the Act and with the Supreme Court's use of the present tense in its ruling in the Weyerhaeuser case. Commenters also asserted that areas in need of restoration in order to support the species or be occupied by the species cannot be considered habitat for that species, and some asserted that the Act, as supported by Weyerhaeuser, prohibits designation of areas that cannot presently support the species. The commenters stated that rescission of the habitat definition rule indicates an intention by the Services to consider such areas as habitat and an intention to designate them as critical habitat or return to the previous practice of designating critical habitat where habitat did not exist.

Response: The Act defines two types of critical habitat—areas “within the geographical area occupied by the species” and areas “outside the geographical area occupied by the species (16 U.S.C. 1532(5)(A)). Areas that are “within the geographical area occupied” at the time the species is listed under the Act are assessed under the first prong of the statutory definition of critical habitat, provided in section 3(5)(A)(i)—that is, the areas must be ones “on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection” (16 U.S.C. 1532(5)(A)(i)). Implicit within this text is that the appropriate timeframe for assessing whether physical or biological features “are found” is, in fact, the time of designation. This approach is consistent with the Services' longstanding interpretation and application of this statutory definition of “occupied” critical habitat and is also reflected in the Services' joint implementing regulations in 50 CFR 424.12(b)(1)(iii).

Areas that are “outside the geographical area occupied” by the species when it is listed under the Act are assessed under the prong of the statutory definition provided in section 3(5)(A)(ii)—that is, only areas that “are essential for the conservation of the species” qualify for designation (16 U.S.C. 1532(A)(ii)). Again, implicit within this text is the concept that the appropriate timeframe for assessing whether an area is essential for conservation is the time of designation. (We note, however, that the Act does not compel the Services to know specifically when a species will be “conserved” as a result of the designation of unoccupied critical habitat.) This approach, too, is consistent with the Services' longstanding interpretation and application of this statutory definition of “unoccupied” critical habitat. That a specific unoccupied area may remain inaccessible to the listed species, or may require some form of natural recovery or reasonable restoration in order to support the listed species over the long term, does not preclude a finding that the area is presently habitat or that the area is “essential for the conservation” of that species if the record of evidence regarding that species' needs and the resources available to it, such as limited availability of other habitat, supports such a conclusion at the time of designation.

As explained previously in our response to Comment 11, in contrast to assertions made in some of the comments, the Supreme Court in Weyerhaeuser did not reach any holding on the matter of whether an area must be capable of supporting the species in its present condition in order to qualify as habitat. Instead, it remanded the case to the Court of Appeals to consider whether the particular record supported a finding that the area disputed in the litigation was habitat for the particular species at issue (the dusky gopher frog). The Weyerhaeuser ruling also did not establish any prohibition on designating areas as critical habitat if those areas may require some reasonable restoration in order to become accessible, habitable, or capable of supporting the species.

As indicated previously, we recognize the Supreme Court's holding in Weyerhaeuser that any area that is designated as critical habitat must also be habitat. Rescinding the regulatory definition of “habitat” does not alter the need for the Services to undertake future critical habitat designations in light of that ruling.

Comment 13: A commenter stated that, without a regulatory definition of “habitat,” there would not be any meaningful standards for judicial review of the Services' exercise of discretion in a particular critical habitat designation decision, undermining the Supreme Court's holding in Weyerhaeuser that the Services' decisions not to exclude areas from critical habitat designations are reviewable under the Administrative Procedure Act.

Response: Although not stated explicitly or elaborated upon further in the comment, we interpret this comment to refer to the discretion the Secretary has under section 4(b)(2) of the Act to exclude particular areas from a designation provided the benefits of the exclusion outweigh the benefits of designation and provided that failure to designate the area will not result in the extinction of the species concerned (16 U.S.C. 1533(b)(2)). In Weyerhaeuser, the Supreme Court determined the Secretary's decision not to exclude an area from critical habitat under section 4(b)(2) of the Act is subject to judicial review. Under section 4(b)(2) of the Act, the Secretary is required to take into consideration economic and other impacts before designating any particular areas as critical habitat. The Secretary may exclude any area from critical habitat if she determines the benefits of such exclusion outweigh the benefits of designation. A regulatory definition of “habitat” is irrelevant to the process of weighing these benefits and would not facilitate judicial review of the exercise of the Services' discretion in determining whether to exclude a particular area from designation under section 4(b)(2) of the Act.

Comment 14: Several commenters noted that the Supreme Court did not limit its holding in Weyerhaeuser to unoccupied areas, and that the prerequisite for an area to be habitat before it is designated as critical habitat applies irrespective of whether the area is occupied or unoccupied. Thus, any area must be habitat for the species in order for it to be eligible for designation as critical habitat regardless of whether it is occupied or unoccupied.

Response: We recognize that the Supreme Court's holding in Weyerhaeuser that any area designated as critical habitat must also be habitat was not limited to areas that are unoccupied by the species. As we explained in our final rule defining “habitat,” if an area is occupied by the species and meets the statutory definition of “critical habitat,” then as a matter of logic and rational inference, the area must also be habitat for the species (85 FR 81411, December 16, 2020). Thus, the definition of “habitat” would have a practical bearing only in cases where an area was unoccupied, and even among unoccupied areas only in the subset of cases where “genuine questions” might exist as to whether areas are habitat for a species (85 FR 81411, p. 81414, December 16, 2020). In all instances, however, the area must be habitat before it can be designated as critical habitat. Rescinding the regulatory definition does not affect that requirement.

Comment 15: Several commenters noted that the Supreme Court also found in Weyerhaeuser that even if an area otherwise meets the statutory definition of unoccupied critical habitat because the Secretary finds the area essential for the conservation of the species, section 4(a)(3)(A)(i) of the Act does not authorize the Secretary to designate the area as critical habitat unless it is also habitat for the species.

Response: As noted in prior responses, we acknowledge the Supreme Court's holding in Weyerhaeuser that any area must be habitat in order to be designated as critical habitat—whether the area is occupied by the species or not. We do not intend to designate any unoccupied area as critical habitat unless it is habitat for the species, nor have we indicated any such intention. We recognize that a finding that an area is “essential for the conservation of the species” is not a substitute for evidence that a particular area qualifies as habitat.

Comment 16: Some commenters asserted that the Services have incorrectly interpreted critical habitat as habitat necessary for the recovery of the species. These commenters stated that the broad definition of “conservation” in the Act does not allow for a broad interpretation of “critical habitat” or justify any action the Services want to take. Instead, the commenters asserted, Congress intended for critical habitat to have a limited role under the Act, and designations of critical habitat should be limited to what is needed to ensure the survival of the species.

Response: It is clear from the plain text of the Act that the purpose of critical habitat is to identify the areas that are essential to the recovery of listed species. The Act defines “critical habitat” in terms of its relationship to the species' “conservation:” Stated generally, “critical habitat,” as defined in section 3, includes areas and habitat features that are essential for the conservation of the listed species (16 U.S.C. 1532(5)(A), emphasis added). Section 3 of the Act in turn defines “conservation” as: “To use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary; such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation” (16 U.S.C. 1532(3), defining “conserve,” “conserving,” and “conservation”). The point at which measures provided pursuant to the Act are no longer necessary is the point at which a listed species has been recovered and should be removed from the lists of threatened and endangered species (see also 50 CFR 424.02). Therefore, the plain text of the critical habitat definition in the Act indicates that critical habitat includes not just areas essential to support the continued survival of the species, but also areas that are essential to the recovery of threatened and endangered species.

Courts have also interpreted the Act's definition of “critical habitat” broadly to include areas that provide for the recovery of listed species. See Gifford Pinchot Task Force v. U.S. Fish and Wildlife Serv., 378 F.3d 1059, 1070 (9th Cir. 2004) (“Clearly, then, the purpose of establishing `critical habitat' is for the government to carve out territory that is not only necessary for the species' survival but also essential for the species' recovery.”); Sierra Club v. U.S. Fish and Wildlife Serv., 245 F.3d 434, 442 (5th Cir. 2001) (noting that the Act's definition of “critical habitat” “is grounded in the concept of conservation' ”); Center for Biological Diversity v. Kelly, 93 F. Supp. 3d 1193, 1201 (D. Idaho 2015) (noting that critical habitat is “defined and designated `in relation to areas necessary for the conservation of the species, not merely to ensure its survival' ”) (quoting Arizona Cattle Growers' Ass'n v. Salazar, 606 F.3d 1160, 1166 (9th Cir. 2010)). The Ninth Circuit also has recognized that “it is logical and inevitable that a species requires more critical habitat for recovery than is necessary for the species' survival,” which necessarily must include potentially suitable habitat areas that the species formerly occupied or may potentially occupy in the future. Gifford Pinchot Task Force, 378 F.3d at 1069.

The commenters have pointed to no legislative history specifically addressing the intended meaning or scope of “habitat,” as used in section 4(a)(3)(A)(i) of the Act, that is distinct from the term “critical habitat.” Legislative history on the meaning of “critical habitat” is not directly relevant here and does not help us discern any intended meaning of “habitat”; therefore, we do not address that history here.

We acknowledge, however, that critical habitat designation alone is not necessarily sufficient to ensure the recovery of listed species. Critical habitat has a specific, limited regulatory role under the Act: It creates a requirement for Federal agencies to ensure that any actions they authorize, fund, or carry out are not likely to destroy or adversely modify designated critical habitat. Beyond this direct regulatory role, critical habitat can also contribute to the conservation of listed species in other ways. Critical habitat can facilitate implementation of section 7(a)(1) of the Act by identifying areas where Federal agencies can focus their conservation programs and use their authorities to further the conservation purposes of the Act. In the absence of a recovery plan, critical habitat can provide a form of early conservation-planning guidance for the Services ( e.g., by identifying some of the areas that are needed for recovery, the physical and biological features needed for the species' life history, and special management considerations or protections), and it can also help focus the conservation efforts of other conservation partners.

The Services do not rely on an assertion of an overly broad meaning for “conservation” to justify actions that are not otherwise authorized under the Act. In fulfilling their responsibilities under the Act, the Services undertake conservation actions that align with the statute's definition of “conservation” and also adhere to the many requirements outlined in the Act, implementing regulations in 50 CFR part 424, and formal policies.

Comment 17: Several commenters stated that the regulatory definition of “habitat” has not been in place long enough for the Services to determine its benefits, nor have the Services put sufficient effort into implementing the regulation. They argued that the Services could consider whether revisions to the definition may be necessary after a reasonable amount of time.

Response: Following a review of the regulatory definition of “habitat,” the Services have found the definition and the preamble of that final rule inappropriately constrain the Services' ability to designate areas that meet the definition of “critical habitat” under the Act and thus undermine the conservation purposes of the Act. In light of this shortcoming, as well as our finding that the definition cannot achieve its intended goals of providing transparency, clarity, and consistency, we have determined it is appropriate to rescind this definition. Because these shortcomings cannot be addressed by putting further effort into implementing the definition (including through issuing interpretive guidance), we have determined that it is in the best interests of stakeholders and for the conservation purposes of the Act to minimize the time that this definition is in effect by swiftly rescinding it. Interpretive guidance cannot overcome the statutory tension the Services have identified. Furthermore, waiting and then considering possible revisions to the definition is not likely to alter our current conclusion that any regulatory definition for this term would necessarily be too generic to provide any meaningful guidance to the Services or the public in terms of delineating what areas qualify as habitat for a given species. As we stated previously, the best approach for determining what areas are habitat for a listed species is to rely on the best available scientific data for that species, provide a thorough accounting of the information used, and subject that determination to peer and public comment during the course of a critical habitat rulemaking.

Comment 18: Multiple commenters requested that the Services revise the definition of “habitat” rather than rescind it. Commenters stated that, if the Services consider the definition to be vague or unclear, they are required to consider alternatives to complete revocation, and the definition should be revised to address those problems, rather than rescinded. Many commenters gave suggestions on how to revise the definition, suggested alternative definitions, or requested that we reconsider the definitions they had submitted previously in response to the initial proposed rule to define the term “habitat.” For example, some commenters stated the definition should be revised in a manner supported by regulated entities and to clearly exclude areas that are currently unsuitable for species conservation. One commenter suggested the Services establish a process to seek stakeholder input on a definition. Other commenters stated the definition was too narrow and should be broadened, or should be more holistic, or that the definition should be revised to avoid precluding areas that will have the necessary attributes for a species due to natural processes or proactive conservation efforts.

Response: As we outlined previously (see “Rationale for Rescission of the Habitat Definition Rule”) we decline to revise the regulatory definition of “habitat.” The Supreme Court did not require us to promulgate a definition in the Weyerhaeuser decision, and upon reconsideration, we have recognized that the regulatory definition ultimately adopted in 2020 was inconsistent with the conservation purposes of the Act and did not meet the stated policy goals of providing clarity, transparency and certainty. Furthermore, which particular areas constitute habitat for any given species depends on that species' biology and ecology, and what in turn qualifies as critical habitat under the Act is guided by the statutory definition of “critical habitat,” regulations in 50 CFR part 424, and existing case law. When we engage in designation of critical habitat, we conduct an exhaustive review of the relevant scientific data and information and provide a detailed and specific as possible explanation in each proposal and final critical habitat rule of the particular listed species' habitats and distribution. A generic, definition of the general term “habitat” would not facilitate or provide any meaningful value to this process. Thus, and as stated previously, we find that application of the best available data regarding a listed species' habitats and adhering to the statutory and regulatory requirements, as well as being guided by case law, is the best path to fulfilling our statutory responsibilities to designate critical habitat under the Act.

Moreover, we have concluded that our 2020 reaction to Weyerhaeuser — i.e., promulgating a regulatory definition to attempt to address the Supreme Court's interpretation of section 4(a)(3)(A)(i) of the ESA—did not take into account the value that the existing notice-and-comment rulemaking process applicable to specific critical habitat designations provides to meet the objectives of giving stakeholders transparency, clarity, and consistency. Rather, at that time, we made an unwarranted assumption that these qualities were lacking. ( See 85 FR 47334, August 5, 2020, (“Given this holding in the Supreme Court's opinion in Weyerhaeuser, we are proposing to add a regulatory definition of `habitat.' ”); also 85 FR 81418, 81419, December 16, 2020, (“As we made clear in the proposed rule, the objective of this rulemaking is to `provide transparency, clarity and consistency for stakeholders' because the Weyerhaeuser decision may raise questions in some instances as to whether areas of unoccupied critical habitat are `habitat.' ”)). The rulemaking process for specific critical habitat designations gives all stakeholders an opportunity to evaluate and provide input on the Services' review of relevant scientific data and information and explanation of a specific species' habitat, necessitates that the Services provide a clear rationale for why a particular critical habitat designation meets the applicable statutory and regulatory standards, and offers substantial consistency in its application to the designation of areas as critical habitat. Because we now conclude that a regulatory definition of “habitat” is not an appropriate policy response to the holding in Weyerhaeuser, rescinding the definition is preferable to revising the definition.

In making this final decision, we have also reviewed and considered the suggested alternatives to rescinding the rule, including the various alternative versions of a definition of “habitat” that were newly submitted and resubmitted. The same challenges that we have identified for the definition codified in 2020 ( e.g., ambiguity, confusion, tension with the statutory definition of “critical habitat”) would arise in attempting to revise the definition or adopt a new definition in response to these comments, as no definition would be sufficiently broad to accommodate the habitats of diverse taxa and both occupied and unoccupied critical habitat, yet simultaneously provide clarity, transparency, and consistency in terms of indicating which specific areas qualify as habitat for a given species. For example, most suggested definitions used terminology, such as “essential attributes,” “ecological attributes,” and “necessary attributes,” that would have a similarly unclear meaning and relationship to the terminology in the statutory definition of “critical habitat.” Some other suggested definitions and approaches, in an attempt to be simple and straightforward or more holistic, would be overly vague and too ambiguous to serve any practical purpose in identifying which areas may or may not qualify as habitat, especially where the area is unoccupied by the species ( e.g., “Habitat is defined as the cumulative influences that act upon, and/or are acted upon by, a living organism”; and “The place or the location where an organism (or a biological population) lives, resides, or exists”).

In reconsidering the December 2020 rulemaking and reviewing alternative definitions submitted in response to the proposed rule for this action, we thoroughly considered alternatives to rescinding the habitat definition. Establishing an additional stakeholder process, beyond the public comment processes already undertaken for this rule and the prior rulemaking, will not help resolve the deficiencies we have identified with codifying a single regulatory definition for “habitat.”

Despite its recency and the limited circumstances in which it would be brought to bear in a designation, the existing regulatory definition of “habitat” has generated extensive controversy and is the subject of ongoing litigation. Eliminating the regulatory definition of “habitat” will eliminate the extensive controversy it has engendered and the potential implementation problems it or any such definition would create. As previously stated, we find that elimination of this definition, and relying instead on the statute, the implementing regulations, existing case law (including Weyerhaeuser ), and the best scientific data available, is the most transparent and reasonable action.

We also note that the commenters' examples of regulatory rescissions that were subject to legal challenges involved agencies that had rescinded full regulatory programs with multiple discrete components ( e.g., the Department of Homeland Security's Deferred Action for Childhood Arrivals program). In these examples, the particular agencies could have considered alternatives, such as rescinding only various parts of the regulatory program, but they did not. That is not the situation here. Rescission of the habitat definition rule has no effect on the existing statutory and regulatory framework establishing the process for the designation of critical habitat. The definition itself did not create any new or different procedural steps in the designation of critical habitat or implementation of the Act (85 FR 81414, December 16, 2020). Accordingly, there is not an array of alternatives that are implicated in the Services' consideration of whether the existence of any regulatory definition of “habitat” is appropriate or not. We are also aware of a recent ruling in response to a challenge regarding another agency's withdrawal of a rule clarifying a statutory definition ( Coalition for Workforce Innovation v. Walsh, 1:21-cv-130, Dkt. 32 (E.D. Tex. Mar. 14, 2022)). In Coalition, the district court judge determined that the Department of Labor had prohibited public comments on its withdrawal rule and accordingly provided no discussion of any alternatives to withdrawal. Here, the Services sought, and have fully considered public comments on the proposed rescission rule. In responding to these comments, we discuss how alternatives, whether in terms of alternative definitions or the alternative of issuing interpretive guidance, would not sufficiently address the issues identified with the regulatory definition.

Comment 19: Several commenters stated the Services have not provided a reasoned basis for rescinding the regulatory definition of “habitat.” They also stated that the rule inappropriately relied on E.O. 13990 as its legal basis for rescinding the regulation and simply restated points that were adequately addressed in the 2020 regulation.

Response: E.O. 13990 required all agencies to review agency actions issued between January 20, 2017, and January 20, 2021, that may be inconsistent with the policies it set forward. Following the issuance of that E.O., we undertook a review of the habitat definition regulation. E.O. 13990 provided the impetus for the review, but the E.O. is not the legal basis of the rescission. We are rescinding the rule on the basis of our legal authority under the Act (16 U.S.C. 1531 et seq. ). As described in the proposed rule to rescind this definition, after reviewing the regulation and its intended effect of eliminating as “habitat” areas in need of restoration, we concluded the final rule inappropriately constrains our ability to designate areas that meet the definition of “critical habitat” under the Act because it is in significant tension with the Act's broad definition of “conservation.” The statute's definition of “conservation” expressly contemplates a wide range of tools for furthering the ultimate goal of recovering listed species including management of habitat (see 16 U.S.C. 1532(3)), and the statute's definition of “critical habitat” is in turn expressly tied to the conservation of the listed species (see 16 U.S.C. 1532(5)(A)). The definition of “habitat,” however, required that areas already contain the resources and conditions necessary to support one or more life processes of a species, and eliminated areas that do not currently or periodically contain the requisite resources and conditions, even if they could after restoration activities or other changes occur and were otherwise considered essential to the conservation of the species.

We also reviewed the available ecological definitions for use as our regulatory definition but found they were either too broad or too narrow to guide designation of areas that could qualify under the statute as unoccupied critical habitat. The qualities that make certain areas habitat for a species vary based on the biology and ecology of the species; the scientific literature also evolves over time; and there is currently some ambiguity in the use of the term “habitat.” Therefore, codifying an inflexible single definition in the Act's regulations would constrain our ability to incorporate the best available ecological science in the future. For those reasons, we have decided to rescind the definition.

The Services disagree with the commenters who asserted our rationale for rescinding the “habitat” definition was insufficient. The specific reasons the commenters cite for that assertion (which we address in other responses to comments, e.g., responses to Comments 18, 20, 21, and 24) do not undermine the legal bases or factual findings for the Services' action.

Comment 20: Some commenters said the rescission ignores a central reason why the “habitat” definition rule was promulgated: to modernize implementation of the Act and provide additional certainty to the regulated community and the public about “habitat.”

Response: The policy reasons articulated for the proposed adoption of the definition are not the same as the policy reasons that guided the Services' reconsideration. As a result, these same goals are not discussed at length in our proposal to rescind the definition. However, following our review of the habitat definition regulation, we determined that, because that rule is in significant tension with the conservation mandate of the Act, it did not in fact modernize implementation of the Act. As discussed in our response to Comment 8, we also determined that it would not provide additional certainty to the regulated community. Because of the significant shortcomings inherent in the definition, we conclude that continued application of the definition would not provide additional certainty to the regulatory community or the public and would likely lead to additional litigation.

Comment 21: Several commenters asserted the Services did not adequately justify the statements in the preamble of the proposed rule to rescind the habitat regulation that the definition is in tension with the Act's definition of “conservation.”

Response: The Act authorizes the Services to designate as critical habitat unoccupied areas that are “essential for the conservation” of the species (16 U.S.C. 1532(5)(A)(ii)). Section 3 of the Act defines “conservation” as including a wide range of tools to specifically further the recovery of listed species. Therefore, and as discussed previously in our response to Comment 16, critical habitat includes areas needed to support the recovery of the species. In order to meet the regulatory definition of “habitat” codified in 2020 (and thus be eligible for designation as critical habitat), areas must already contain all the resources and conditions necessary to support one or more life processes of the species. That definition, as discussed in the preamble to that rule, excluded areas that do not currently or periodically contain the requisite resources and conditions even if those areas could meet this requirement after minor restoration or natural changes occur and are clearly (on the basis of the best available science) habitat from a biological perspective for a particular species. Because of that exclusion, we find the definition and the preamble of the 2020 final rule inappropriately constrain the Services' ability to designate areas that meet the definition of “critical habitat” under the Act and are therefore in tension with the Act's definition of “conservation.” Identifying and protecting those areas when we determine they are essential, rather than delaying until a future point in time when conditions that are not required under the Act's definition are realized, better fulfills the conservation purposes of the Act.

Comment 22: A commenter asserted that, in the preamble of the proposed rule to rescind the “habitat” definition, we said it is illogical to require that an area be habitable before designating it as critical habitat and that such an assertion is not consistent with the Act. The commenter further stated that the Services have tools other than the designation of critical habitat under the Act to conserve species in areas that should not be considered habitat.

Response: This comment misinterprets our statements. In the preamble to this final rule, we said the broad definition of “conservation,” along with the statute's recognition of destruction or loss of habitat as a key factor in the decline of listed species (in section 4(a)(1) of the Act), indicates that areas not currently in an optimal state to support a species could nonetheless be considered “habitat” and “critical habitat” (86 FR 59353, p. 59354, October 27, 2021). Including those areas in critical habitat designations, where appropriate, may be essential for the conservation of some species and is consistent both with the purposes of the Act and with the Services' practice prior to the habitat definition final rule becoming effective in January 2021. To find otherwise would lead to the illogical result that the more a species' habitat has been degraded, the less ability there is to attempt to recover the species. Our reference regarding illogical results was about our ability to attempt to recover species in furtherance of the purposes of the Act as a species' habitat becomes more degraded.

Designation of critical habitat is one important tool among the many tools the Act provides to conserve species. Congress recognized the importance of critical habitat for the conservation of listed species by mandating that the Services designate critical habitat at the time the species is listed except in very limited circumstances.

Comment 23: One commenter stated that, under the Supreme Court's holding in Weyerhaeuser, the Act's definition of “conservation” has no relevance to the meaning of habitat.

Response: The Services recognize the Supreme Court's holding in Weyerhaeuser that, for an area to be designated as critical habitat, it must also be habitat. However, the Supreme Court did not reach any holdings with regard to how the Services can or should interpret the term “habitat” as it is used in section 4(a)(3)(A)(i) of the Act, which generally compels the Services to designate for a species “any habitat” that is then considered to be critical habitat. Because the purpose of designating critical habitat, and the Act itself, is to conserve listed species, and because “critical habitat” is expressly defined with reference to “conservation,” the term “conservation” is inherently relevant to the determination of areas that are considered habitat for listed species. Further, habitat is a key concept in conservation biology and is integral to the conservation of the species.

Comment 24: Many commenters stated that the habitat definition will not limit what the Services can designate as critical habitat and that there is no evidence or indication that the definition has constrained the Services' ability to designate critical habitat. Some commenters asserted that the definition does not preclude designation of suboptimal areas or areas that are in need of restoration and that the definition precludes only designation of wholly uninhabitable areas. Commenters also stated that the Services can always revise critical habitat designations if and when an area becomes habitat, either through natural processes or through human efforts. Other commenters stated that the habitat definition was too narrow and could lead to the absurd outcome of excluding from critical habitat designations degraded areas or lost habitat, future habitat areas, areas that indirectly support the species, or areas where resources and conditions are not precisely known.

Response: We acknowledge that during the short time that the habitat definition rule has been in effect, the definition has not resulted in reduced designations over what we might have designated in the absence of the definition. Nevertheless, the definition and associated discussion in the preamble to the 2020 rule regarding restoration inappropriately constrain our ability to designate critical habitat. Although there has been limited opportunity for the Services to provide tangible examples of how this definition has affected a designation, we do not need to wait until that situation occurs in order to rescind the habitat definition rule.

The habitat definition rule limits our ability to designate as critical habitat areas that are degraded or considered suboptimal for all species if those areas are in need of management actions or restoration to support the species even though those areas may easily qualify, as a matter of biological science, as habitat for a particular species. The purpose of designating critical habitat is to conserve species that depend on those areas, and the statutory definition of “conservation” broadly includes actions that relate to management of habitat (16 U.S.C. 1532(3)). Therefore, it furthers the statutory purpose to designate areas that do not at the time of designation contain all of the resources and conditions that the species needs but could contain them with some limited additional management or restoration. The limitations on what areas may qualify as habitat arise from the statements in the preamble to the December 2020 final rule that the habitat definition excludes areas that do not currently contain the requisite resources and conditions to support one or more life processes of the species even if these areas could do so after restoration activities or other changes occurred (85 FR 81411, p. 81413, December 16, 2020). Implicit in these statements is a requirement that no amount of restoration, however reasonable, can be needed for an area to qualify as habitat for a given species. These statements similarly imply that no changes to the habitat, however predictable or foreseeable, can be assumed, or even planned, in order for an area to qualify as habitat for a given species. The habitat definition rule, in effect, excludes areas from qualifying as habitat if they require any amount of restoration or lack any of what might be deemed a “necessary resource or condition” and in turn precludes such areas from designation as critical habitat.

Because most species are faced with extinction as a result of habitat degradation and loss, it is more consistent with the purposes of the ESA to avoid limiting the Services' ability to designate critical habitat to protect the habitats of listed species and support their recovery. Avoiding such a limitation is a primary reason we are rescinding the habitat rule. By rescinding the habitat definition rule and essentially retracting statements made in the preamble to the 2020 final rule, we reiterate that we do not intend to designate areas that are wholly unsuitable for the given listed species or that require extreme intervention or modification in order to support the species. We instead intend to proceed in light of the Supreme Court's ruling in Weyerhaeuser that an area must be habitat for the species in order for it to be designated as critical habitat. See also our response to Comment 10. Although the Services have the authority under the Act to revise critical habitat when appropriate, removing these potential limitations on the Services' ability to designate critical habitat in the first place is more consistent with the purposes of the Act and is also a more effective and efficient way to implement the Act.

Comment 25: Many commenters stated that the regulatory definition of “habitat” is not unclear and will not generate confusion or conflict with other programs or statutes, especially because its application is explicitly limited to critical habitat designation. Some commenters stated that the regulatory definition of “habitat” is similar to others and is consistent with definitions in the scientific literature, the plain language meaning of the term, and the Services' own interpretations of this term. The commenters asserted that, in proposing to rescind the definition, the Services had failed to provide a sufficient explanation or demonstration of how the definition was unclear or would generate confusion. In contrast, other comments expressed support for the rescission of the “habitat” definition in part because the definition is confusing or uses ambiguous terms that were inadequately explained.

Response: In the proposed rule to rescind the regulatory definition of “habitat,” we stated that we were proposing to rescind the definition, in part, because it was confusing and insufficiently clear (86 FR 59353, p. 59354, October 27, 2021). We briefly explained that, in our attempt to ensure that the final definition was sufficiently broad to capture the term “critical habitat,” we had deliberately avoided using the same terminology as in the statutory definition for “critical habitat” and instead resorted to using different terms, such as “biotic and abiotic setting” and “resources and conditions,” that have no established meaning in the Act, our regulations, or our prior practices. Although the preamble of the habitat definition rule explained the wording changes made in finalizing the definition and why those changes were made, the rule did not articulate interpretations for each of the terms used. The habitat definition rule did not articulate, for example, what will satisfy the “necessary to support” phrase or what the full scope of the necessary “resources and conditions” should include in a given “setting.” Thus, during the course of designating critical habitat, differing and potentially conflicting interpretations could arise regarding, for example, whether the existing resources and conditions are sufficient to meet the “necessary to support” standard and over what time period this should even be assessed; or how many members of a species must be able to use a particular “setting” in order for the setting to qualify as supporting “one or more life processes of the species.”

Just because the regulatory definition we developed may be in some respects similar to, or generally consistent with, certain other dictionary and scientific definitions for this term does not alleviate these concerns or invalidate this reason for rescinding the definition. We instead conclude that a more reasonable and supportable approach is to apply species-specific ecological data when determining whether particular areas constitute habitat for that species. The fact that, in response to our proposed rule to rescind the existing definition, we received multiple proposed alternative definitions and various suggestions regarding how to potentially revise the definition serves as further indication that debate and disagreement over wording and interpretations of the definition are likely to continue, and that what qualifies as habitat is better determined on a fact-specific, case-by-case basis (see also response to Comment 18).

The language limiting the definition's applicability to critical habitat designations does not alleviate the potential for confusion or the potential for conflict with other programs or statutes. Although not a significant aspect of our rationale for rescinding the definition, we pointed out in the proposed rule that having multiple definitions and interpretations of what constitutes habitat that vary based on the particular Federal program or statutory authority may be confusing (86 FR 59353, p. 59355, October 27, 2021). It is also inherently confusing, likely for both the Services and the public, to limit the regulatory definition to only the designation of critical habitat when other provisions of the Act directly or indirectly address the habitats of listed species. This limitation on applicability implies that the term “habitat” will be interpreted differently when the Services are implementing other provisions or programs under the Act. For example, it implies that the Services will use a different definition of the term “habitat” when evaluating habitat conservation plans developed under section 10 of the Act; when identifying habitat conservation actions in a recovery plan prepared under section 4(f) of the Act; or when evaluating whether a species is threatened by the destruction, modification, or curtailment of habitat under section 4(a)(1)(A) of the Act. Therefore, in contrast to the comments that suggest this limited applicability eliminates the concern regarding varying interpretations of the term “habitat” and any resulting confusion, we find this limitation served only to substitute one source of potential confusion for another.

Comment 26: Several commenters stated the habitat definition rule does not prevent the use of, or reliance on, the best available scientific data. Further, they argued, the preamble to the proposed rule to rescind the definition provided no support for statements that the definition could prevent the Services from relying on the best available scientific data when designating critical habitat; they also maintained that those statements conflict with statements we made in the 2020 final rule. Several other commenters stated that the best available scientific data is used to determine whether areas meet the definition of “habitat,” not to define the term “habitat.” The term “habitat” should have a fixed meaning and is a question of statutory interpretation, not the best available scientific information.

Response: As noted above, we have reassessed the habitat definition rule in light of E.O. 13990 and have concluded that statements in the preamble to the 2020 final rule inappropriately constrain the Services' ability to designate areas that meet the definition of “critical habitat” under the Act (85 FR 81411, p. 81413, December 16, 2020). As noted by the commenters, the Supreme Court determined in Weyerhaeuser that an area must be habitat in order to be designated as critical habitat. The Act requires us to identify areas for designation as critical habitat on the basis of the best available scientific data for a particular species. Although at the time of promulgating the definition we glossed over the difficulties, we see now that any definition that categorically precludes certain types of areas from being considered habitat for any species even though some areas would, on the basis of the best available science, easily be demonstrated to be habitat for that species is inappropriate. Such a narrow rule inappropriately limits our ability to rely on the best available scientific data to determine what is habitat for that species. In addition, because the scientific literature evolves over time, and our understanding of “habitat” could also evolve, codifying a single definition in regulation could constrain the Services' ability to incorporate the best available ecological science in the future.

Habitat is an ecological term that should be defined or identified based on the best available scientific data. The Act clearly requires that critical habitat should be determined on the basis of the best available science. The unique regulatory definition of “habitat” promulgated in 2020 could conflict with this mandate by requiring and shaping or limiting how the Services can consider which areas meet the definition of “critical habitat.” We find that relying on the best available scientific data as specified in the Act, including species-specific ecological information, is the best way to determine whether areas constitute habitat and meet the definition of critical habitat for a species.

Comment 27: A commenter disagreed with our statement in the preamble to the proposed rule to this final rule that the scientific literature evolves over time with regard to habitat. The commenter also stated there is no evidence that Congress, upon adopting the Act's provisions that deal with critical habitat designations in 1978, intended to adopt an evolving scientific definition of “habitat” or rely on concepts in the scientific literature. The commenter further asserted that it should be understood that Congress intended the term to have its ordinary meaning.

Response: Habitat is a key ecological concept in conservation biology and is linked to a scientific understanding of a particular species and its environment. What constitutes habitat for a particular species depends on complex considerations that must be informed by the best available scientific data regarding that species' life-history needs. Further, the scientific literature on species conservation continues to evolve, and the variety of definitions for “habitat” found in the conservation biology literature are reflective of that evolution ( e.g., Odum 1971, Whittaker et al. 1973, Hall et al. 1997, Kearney 2006). Because Congress did not define the term “habitat” but mandated that we designate critical habitat on the basis of the best available scientific data for a particular species, it is logical that our understanding of what areas serve as habitat for the species, and can therefore be potentially designated as critical habitat, must both itself be based on the best available scientific data and allow for application in the context of particular designations that will be consistent with the best available science for each particular species. Because Congress defined “critical habitat,” the term “habitat” must also be compatible with both prongs of the definition of “critical habitat,” including unoccupied areas, which generic dictionary definitions of “habitat” generally do not include.

Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this rule is significant.

Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, reduce uncertainty, and encourage use of the best, most innovative, and least burdensome tools for achieving regulatory ends. We have developed this final rule in a manner consistent with the requirements of E.O. 13563, and in particular with the requirement that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas.

Under the Regulatory Flexibility Act (as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 601 et seq. ), whenever a Federal agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare, and make available for public comment, a regulatory flexibility analysis that describes the effect of the rule on small entities ( i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency, or their designee, certifies that the rule will not have a significant economic impact on a substantial number of small entities. SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities.

NMFS and FWS are the only entities that are directly affected by this rule because we are the only entities that designate critical habitat under the Act. This rule does not directly apply to any other entities. Thus, no other entities, including any small businesses, small organizations, or small governments, will experience any direct economic impacts from this rule. Entities other than NMFS and FWS, including small businesses, small organizations, and small governments, may, however, be affected by critical habitat designations, and any such impacts would be assessed and taken into consideration by the Services as part of those specific rulemakings. At the proposed rule stage, we certified that this rule would not have a significant economic effect on a substantial number of small entities. Nothing in this final rule changes that conclusion.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ):

(a) On the basis of information contained in the Regulatory Flexibility Act section, this rule does not “significantly or uniquely” affect small governments. We have determined and certify pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502, that this rule does not impose a cost of $100 million or more in any given year on local or State governments or private entities. A Small Government Agency Plan is not required. As explained above, small governments are not affected because the rule does not place additional requirements on any city, county, or other local municipalities.

(b) This rule would not produce a Federal mandate on State, local, or Tribal governments or the private sector of $100 million or greater in any year; therefore, this rule is not a “significant regulatory action” under the Unfunded Mandates Reform Act. This rule would impose no obligations on State, local, or Tribal governments.

In accordance with E.O. 12630, this rule does not have significant takings implications. This rule does not directly affect private property, nor does it cause a physical or regulatory taking. It does not result in a physical taking because it does not effectively compel a property owner to suffer a physical invasion of property. Further, the rule does not result in a regulatory taking because it does not deny all economically beneficial or productive uses of the land or aquatic resources, it does substantially advance a legitimate government interest (conservation and recovery of endangered species and threatened species), and it does not present a barrier to all reasonable and expected beneficial uses of private property.

This rule does not have significant federalism effects, and a federalism summary impact statement is not required under E.O. 13132. This rule pertains only to designation of critical habitat under the Act and would not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government.

This rule does not unduly burden the judicial system and meets the applicable standards provided in sections 3(a) and 3(b)(2) of E.O. 12988. This rule pertains only to designation of critical habitat under the Act.

In accordance with E.O. 13175, “Consultation and Coordination with Indian Tribal Governments,” the Department of the Interior's manual at 512 DM 2, the Department of Commerce Tribal Consultation and Coordination Policy (May 21, 2013), the Department of Commerce Departmental Administrative Order (DAO) 218-8 (April 2012), and the National Oceanic and Atmospheric Administration (NOAA) Administrative Order (NAO) 218-8 (April 2012), we considered the possible effects of this rule on federally recognized Tribes. This rule is general in nature and does not directly affect any specific Tribal lands, treaty rights, or Tribal trust resources. This regulation, which removes the definition of “habitat” from 50 CFR 424.02, has a direct effect on the Services only. With or without the regulatory definition of “habitat,” the Services would be obligated to continue to designate critical habitat based on the best available data and would continue to coordinate and consult as appropriate with Tribes and Alaska Native corporations on critical habitat designations, consistent with our longstanding practice.

During July 2021, we held three separate webinars for Tribes and Tribal organizations to provide an overview of, and information on how to provide input on, a series of rulemakings related to implementation of the Act that the Services were developing, including the proposed rule to rescind the habitat definition rule. We received written comments from Tribal organizations; however, we did not receive any requests for consultation regarding this action. Although this rule does not have “tribal implications” under section 1(a) of E.O. 13175, we will continue to collaborate with Tribes on issues related to federally listed species and their habitats and work with the Tribes as we implement the provisions of the Act. See Joint Secretarial Order 3206 (“American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act”, June 5, 1997).

This rule does not contain any new collections of information that require approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA) (45 U.S.C. 3501 et seq. ).

We have analyzed this rule in accordance with the criteria of the National Environmental Policy Act (NEPA), the Department of the Interior regulations on Implementation of the National Environmental Policy Act (43 CFR 46.10-46.450), the Department of the Interior Manual (516 DM 8), the NOAA Administrative Order 216-6A, and the NOAA Companion Manual (CM), “Policy and Procedures for Compliance with the National Environmental Policy Act and Related Authorities” (effective January 13, 2017). We have determined that a detailed statement under NEPA is not required because the rule is covered by a categorical exclusion. The Department of the Interior has found that the following categories of actions would not individually or cumulatively have a significant effect on the human environment and are, therefore, categorically excluded from the requirement for completion of an environmental assessment or environmental impact statement: “Policies, directives, regulations, and guidelines: that are of an administrative, financial, legal, technical, or procedural nature.” 43 CFR 46.210(i). We have also determined that the rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.

NOAA's NEPA procedures include a similar categorical exclusion for “preparation of policy directives, rules, regulations, and guidelines of an administrative, financial, legal, technical, or procedural nature” (Categorical Exclusion G7, at CM Appendix E). This rule does not involve any of the extraordinary circumstances provided in NOAA's NEPA procedures, and therefore does not require further analysis to determine whether the action may have significant effects (CM at 4.A).

As a result, we find that the categorical exclusion found at 43 CFR 46.210(i) and in the NOAA CM applies to this regulation rescission, and neither Service has identified any extraordinary circumstances that would preclude this categorical exclusion. We did not receive any public comments regarding our stated intention of invoking a categorical exclusion, with the exception of comments asserting that the initial use of a categorical exclusion when the habitat definition rule was codified ( i.e., the rule we are now rescinding) was incorrect. These comments do not conflict with or undermine our analysis here or compliance with applicable NEPA regulations for this rule.

Executive Order 13211 requires agencies to prepare statements of energy effects when undertaking certain actions. The rescission of the regulatory definition of “habitat” is not expected to affect energy supplies, distribution, and use. Therefore, this action is not a significant energy action, and no statement of energy effects is required.

Shannon Estenoz, Assistant Secretary for Fish and Wildlife and Parks, approved this action on February 28, 2022, for publication. On June 16, 2022, Shannon Estenoz authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of the Interior.

We issue this rule under the authority of the Endangered Species Act, as amended (16 U.S.C. 1531 et seq ).

For the reasons set out in the preamble, we hereby amend part 424, subchapter A of chapter IV, title 50 of the Code of Federal Regulations, as set forth below: