The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority, as it updates each airport's geographic coordinates and airspace descriptions. This update is an administrative change and does not change the airspace boundaries or operating requirements.

Class D and Class E airspace are published in paragraphs 5000 and 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, incorporated by reference in 14 CFR 71.1 annually. This document amends the current version of that order, FAA Order JO 7400.11H, dated August 11, 2023, and effective September 15, 2023. FAA Order JO 7400.11H is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next FAA Order JO 7400.11 update. FAA Order JO 7400.11H lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to 14 CFR part 71 amends the Class D airspace and the Class E airspace extending upward from 700 feet above the surface for Luis Munoz Marin International Airport and Fernando Luis Ribas Dominicci Airport, San Juan, PR by updating each airport's geographic coordinates, as well as updating the descriptions by making editorial changes, replacing the term Notice to Airmen with Notice to Air Missions and replacing the term Airport/Facility Directory with Chart Supplement in the appropriate description. In addition, the San Juan Class D airspace header is corrected to read PR (previously RP). This action is an administrative change and does not affect the airspace boundaries or operating requirements; therefore, notice and public procedure under 5 U.S.C. 553(b) is unnecessary.

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

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant the preparation of an environmental assessment.

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

The FAA published a final rule in the Federal Register on December 27, 2023 (88 FR 89292), for Docket No. FAA 2023-2051, amending Class E airspace extending upward from 700 feet above the surface for Statesboro-Bulloch County Airport, Statesboro, GA. After publication, the FAA found the Class E description listed the airport name incorrectly. This action corrects this error.

In FR Doc 2023-28312 at 89293, published in the Federal Register on December 27, 2023, The FAA makes the following correction:

The Convention on Cultural Property Implementation Act (Pub. L. 97-446, 19 U.S.C. 2601 et seq. ) (CPIA), which implements the 1970 United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (823 U.N.T.S. 231 (1972)) (the Convention), allows for the conclusion of an agreement between the United States and another party to the Convention to impose import restrictions on eligible archaeological and ethnological materials. Under the CPIA and applicable U.S. Customs and Border Protection (CBP) regulations, found in section 12.104 of title 19 of the Code of Federal Regulations (19 CFR 12.104), the restrictions are effective for no more than five years beginning on the date on which an agreement enters into force with respect to the United States (19 U.S.C. 2602(b)). This period may be extended for additional periods, each extension not to exceed five years, if it is determined that the factors justifying the initial agreement still pertain and no cause for suspension of the agreement exists (19 U.S.C. 2602(e); 19 CFR 12.104g(a)).

On January 14, 2014, the United States entered into a memorandum of understanding (2014 MOU) with the Republic of Bulgaria (Bulgaria), concerning the imposition of import restrictions on certain categories of archaeological and ecclesiastical ethnological material of Bulgaria. On January 16, 2014, CBP published a final rule, CBP Dec. 14-01, in the Federal Register (79 FR 2781) to reflect the imposition of restrictions on this material, including a list designating the types of archaeological and ecclesiastical ethnological materials covered by the restrictions. Consistent with the requirements of 19 U.S.C. 2602(b) and 19 CFR 12.104g, these restrictions were effective for a period of five years, through January 14, 2019.

The import restrictions were subsequently extended in accordance with 19 U.S.C. 2602(e) and 19 CFR 12.104g(a). On January 8, 2019, the United States entered into a superseding memorandum of understanding (2019 MOU) with Bulgaria to extend the import restrictions. Accordingly, CBP published a final rule, CBP Dec. 19-01, in the Federal Register (84 FR 112) amending 19 CFR 12.104g(b) to extend the import restrictions and correct an inconsistency in the 2014 MOU listing the ecclesiastical ethnological material as ranging in date from A.D. 681 rather than as listed in the Designated List as from the beginning of the 4th century A.D.

On May 19, 2023, the United States Department of State published a proposal to extend and amend the 2019 MOU, in the Federal Register (88 FR 32265). On November 7, 2023, after considering the views and recommendations of the Cultural Property Advisory Committee, the Acting Assistant Secretary for Educational and Cultural Affairs, United States Department of State, made the determinations necessary to extend and amend the 2019 MOU. Following an exchange of diplomatic notes, the United States Department of State and the Ministry of Foreign Affairs of the Republic of Bulgaria have agreed to amend the 2019 MOU, and extend the restrictions for an additional five-year period, through January 14, 2029.

Accordingly, CBP is amending 19 CFR 12.104g(a) to reflect the extension of the import restrictions and amendment of the Designated List of cultural property described in CBP Dec. 14-01 and revised by CBP Dec. 19-01. The amendments include the expansion of dates for archaeological and ecclesiastical ethnological material, corrections to minor inconsistencies in the Designated List in CBP Dec. 19-01, and explicit clarification that wood is covered by import restrictions on archaeological organic materials. The restrictions on the importation of archaeological and ecclesiastical ethnological material will be in effect through January 14, 2029. Importation of such material of Bulgaria, as described in the Designated List below, will be restricted through that date unless the conditions set forth in 19 U.S.C. 2606 and 19 CFR 12.104c are met.

The Designated List includes archaeological and ecclesiastical ethnological material. Archaeological material ranges in date from approximately 1.6 million years ago through approximately A.D. 1750. Ecclesiastical ethnological material ranges in date from the beginning of the 4th century A.D. through approximately A.D. 1900. For the reader's convenience, CBP is reproducing the Designated List contained in CBP Dec. 14-01 and last revised by CBP Dec. 19-01 in its entirety, with the changes discussed herein.

The list is divided into the following categories of objects:

The Designated List and additional information may also be found at the following website address: https://eca.state.gov/cultural-heritage-center/cultural-property-advisory-committee/current-import-restrictions by selecting the material for “Bulgaria.”

The bilateral agreement between the United States and Bulgaria includes, but is not limited to, the categories of objects described in the designated list set forth below. These categories of objects are subject to the import restrictions set forth above, in accordance with the above explained applicable law and the regulation amended in this document (19 CFR 12.104g(a)).

The import restrictions cover complete examples of objects and fragments thereof.

The archaeological materials represent the following periods and cultures: Paleolithic, Neolithic, Chalcolithic, Bronze Age, Iron Age, Thracian, Hellenistic, Roman, Middle Ages, First Bulgarian Empire, Byzantine, Second Bulgarian Empire, and Ottoman. The ecclesiastical ethnological materials represent the following periods and cultures: Middle Ages, First Bulgarian Empire, Byzantine, Second Bulgarian Empire, Ottoman, and Third Bulgarian State. Ancient place names associated with the region of Bulgaria include Odrysian Kingdom, Thrace, Thracia, Moesia Inferior, Moesia Superior, Coastal Dacia, Inner Dacia, Rhodope, Haemimontus, Europa, Bulgaria, and Eyalet of Rumeli.

The categories of Bulgarian archaeological objects on which import restrictions are imposed were made from approximately 1.6 million years ago through approximately A.D. 1750.

A. Stone

1. Sculpture

a. Architectural Elements—In marble, limestone, gypsum, and other kinds of stone. Types include acroterion, antefix, architrave, base, capital, caryatid, coffer, column, crowning, fountain, frieze, pediment, pilaster, mask, metope, mosaic and inlay, jamb, tile, triglyph, tympanum, basin, and wellhead.

Approximate date: First millennium B.C. to A.D. 1750.

b. Monuments—In marble, limestone, granite, sandstone, and other kinds of stone. Types include, but are not limited to, votive statues, funerary, documentary, votive stelae, military columns, herms, stone blocks, bases, and base revetments. These may be painted, carved with borders, carry relief sculpture, and/or carry dedicatory, documentary, official, or funerary inscriptions, written in various languages including Thracian, Proto-Bulgarian, Greek, Latin, Hebrew, Turkish, and Bulgarian.

Approximate date: First millennium B.C. through A.D. 1750.

c. Sarcophagi and Ossuaries—In marble, limestone, and other kinds of stone. Some have figural scenes painted on them, others have figural scenes carved in relief, and some are plain or just have decorative moldings.

Approximate date: Third millennium B.C. through A.D. 1750.

d. Large Statuary—Primarily in marble, also in limestone and sandstone. Subject matter includes human and animal figures and groups of figures in the round. Common types are large-scale, free-standing statuary from approximately 1 m to 2.5 m in height and life-size busts (head and shoulders of an individual).

Approximate date: Third millennium B.C. through A.D. 1750.

e. Small Statuary and Figurines—In marble and other stone. Subject matter includes human and animal figures and groups of figures in the round. These range from approximately 10 cm to 1 m in height.

Approximate date: Paleolithic through A.D. 1750.

f. Reliefs—In marble and other stone. Types include carved relief vases and slabs carved with subject matter such as a horseman, vegetative, floral, or decorative motifs, sometimes inscribed. Used for architectural decoration, funerary, votive, or commemorative monuments.

Approximate date: Third millennium B.C. through A.D. 1750.

g. Furniture—In marble and other stone. Types include tables, thrones, and beds.

Approximate date: Third millennium B.C. through A.D. 1750.

2. Vessels—In marble, steatite, rock crystal, and other stone. These may belong to conventional shapes such as bowls, cups, jars, jugs, and lamps, or may occur in the shape of a human or animal, or part of a human or animal.

Approximate date: Neolithic through A.D. 1750.

3. Tools, Instruments, and Weapons—In flint, quartz, obsidian, and other hard stones. Types of stone tools include large and small blades, borers, scrapers, sickles, awls, harpoons, cores, loom weights, and arrow heads. Ground stone types include grinders ( e.g., mortars, pestles, millstones, whetstones), choppers, axes, hammers, moulds, and mace heads.

Approximate date: Paleolithic through A.D. 1750.

4. Seals and Beads—In marble, limestone, and various semiprecious stones including rock crystal, amethyst, jasper, agate, steatite, and carnelian. May be incised or cut as gems or cameos.

Approximate date: Paleolithic through A.D. 1750.

B. Metal

1. Sculpture

a. Large Statuary—Primarily in bronze, including fragments of statues. Subject matter includes human and animal figures, and groups of figures in the round. Common types are large-scale, free-standing statuary from approximately 1 m to 2.5 m in height and life-size busts (head and shoulders of an individual).

Approximate date: Fifth millennium B.C. through A.D. 1750.

b. Small Statuary and Figurines—Subject matter includes human and animal figures, groups of figures in the round, masks, plaques, and bronze hands of Sabazios. These range from approximately 10 cm to 1 m in height.

Approximate date: First millennium B.C. through Roman.

c. Reliefs—In gold, bronze, or lead. Types include burial masks, leaves, and appliqué with images of gods, mythical creatures, etc.

Approximate date: First millennium B.C. through Roman.

d. Inscribed or Decorated Sheet Metal—In bronze or lead. Engraved inscriptions, “military diplomas,” and thin metal sheets with engraved or impressed designs often used as attachments to furniture.

Approximate date: First millennium B.C. through A.D. 1750.

2. Vessels—In bronze, gold, and silver. Bronze may be gilded or silver-plated. These may belong to conventional shapes such as bowls, cups, jars, jugs, strainers, cauldrons, candelabras, and lamps, or may occur in the shape of a human or animal or part of a human or animal.

Approximate date: Fifth millennium B.C. through A.D. 1750.

3. Personal Ornaments—In copper, bronze, gold, and silver. Bronze may be gilded or silver-plated. Types include torques, rings, beads, pendants, belts, belt buckles, belt ends/appliqués, earrings, ear caps, diadems, spangles, straight and safety pins, necklaces, mirrors, wreaths, cuffs, pectoral crosses, and beads.

Approximate date: Fifth millennium B.C. through A.D. 1750.

4. Tools—In copper, bronze, and iron. Types include knives, hooks, weights, axes, scrapers (strigils), trowels, keys, dies for making coins, and the tools of physicians and artisans such as carpenters, masons, and metal smiths.

Approximate date: Fifth millennium B.C. through A.D. 1750.

5. Weapons and Armor—In copper, bronze, and iron. Types include both launching weapons (harpoons, spears, and javelins) and weapons for hand-to-hand combat (swords, daggers, battle axes, rapiers, maces etc.). Armor includes body armor, such as helmets, cuirasses, shin guards, and shields, and horse armor/chariot decorations often decorated with elaborate engraved, embossed, or perforated designs.

Approximate date: Fifth millennium B.C. through A.D. 1750.

6. Seals—In lead, tin, copper, bronze, silver, and gold. Types include rings, amulets, stamps, and seals with shank. They pertain to individuals, kings, emperors, patriarchs, and other spiritual leaders.

Approximate date: Bronze Age through A.D.1750.

7. Coins—In copper, bronze, silver, and gold. Many of the listed coins with inscriptions in Greek can be found in B. Head, Historia Numorum: A Manual of Greek Numismatics (London, 1911) and C.M. Kraay, Archaic and Classical Greek Coins (London, 1976). Many of the Roman provincial mints in modern Bulgaria are covered in I. Varbanov, Greek Imperial Coins I: Dacia, Moesia Superior, Moesia Inferior (Bourgas, 2005), id., Greek Imperial Coins II: Thrace (from Abdera to Pautalia) (Bourgas, 2005), id., Greek Imperial Coins III: Thrace (from Perinthus to Trajanopolis), Chersonesos Thraciae, Insula Thraciae, Macedonia (Bourgas 2007). A non-exclusive list of pre-Roman and Roman mints includes Mesembria (modern Nesembar), Dionysopolis (Balchik), Marcianopolis (Devnya), Nicopolis ad Istrum (near Veliko Tarnovo), Odessus (Varna), Anchialus (Pomorie), Apollonia Pontica (Sozopol), Cabyle (Kabile), Deultum (Debelt), Nicopolis ad Nestum (Garmen), Pautalia (Kyustendil), Philippopolis (Plovdiv), Serdica (Sofia), and Augusta Traiana (Stara Zagora). Later coins may be found in A. Radushev and G. Zhekov, Catalogue of Bulgarian Medieval Coins IX-XV c. (Sofia 1999) and J. Youroukova and V. Penchev, Bulgarian Medieval Coins and Seals (Sofia 1990).

a. Pre-monetary media of exchange including “arrow money,” bells, and bracelets.

Approximate date: 13th century B.C. through 6th century B.C.

b. Thracian and Hellenistic coins struck in gold, silver, and bronze by city-states and kingdoms that operated in the territory of the modern Bulgarian state. This designation includes official coinages of Greek-using city-states and kingdoms, Scythian and Celtic coinage, and local imitations of official issues. Also included are Greek coins from nearby regions that are found in Bulgaria.

Approximate date: 6th century B.C. through 1st century B.C.

c. Roman provincial coins—Locally produced coins usually struck in bronze or copper at mints in the territory of the modern state of Bulgaria. May also be silver, silver plate, or gold.

Approximate date: 1st century B.C. through 4th century A.D.

d. Coinage of the First and Second Bulgarian Empires and Byzantine Empire—Struck in gold, silver, and bronze by Bulgarian and Byzantine emperors at mints within the modern state of Bulgaria.

Approximate date: 4th century A.D. through A.D. 1396.

e. Ottoman coins—Struck at mints within the modern state of Bulgaria.

Approximate date: A.D. 1396 through A.D. 1750.

C. Ceramic

1. Sculpture

a. Architectural Elements—Baked clay (terracotta) elements used to decorate buildings. Elements include tiles, acroteria, antefixes, painted and relief plaques, metopes, cornices, roof tiles, pipes, and revetments. May be painted as icons. Also included are wall and floor plaster decorations.

Approximate date: First millennium B.C. through A.D. 1750.

b. Large Statuary—Subject matter includes human and animal figures and groups of figures in the round. Common types are large-scale, free-standing statuary from approximately 1 m to 2.5 m in height and life-size busts (head and shoulders of an individual).

Approximate date: Neolithic through 6th century A.D.

c. Small Statuary—Subject matter is varied and includes human and animal figures, human body parts, groups of figures in the round, shrines, houses, and chariots. These range from approximately 10 cm to 1 m in height.

Approximate date: Neolithic through 6th century A.D.

2. Vessels

a. Neolithic and Chalcolithic Pottery—Handmade, decorated with appliqué and/or incision, sometimes decorated with a lustrous burnish or added paint. These come in a variety of shapes from simple bowls and vases with three or four legs, anthropomorphic and zoomorphic vessels, to handled scoops and large storage jars.

b. Bronze Age through Thracian Pottery—Handmade and wheel-made pottery in shapes for tableware, serving, storing, and processing, with lustrous burnished, matte, appliqué, incised, and painted decoration.

c. Black Figure and Red Figure Pottery—These are made in a specific set of shapes ( e.g., amphorae, kraters, hydriae, oinochoi, kylikes) decorated with black painted figures on a clear clay ground (Black Figure), decorative elements in reserve with background fired black (Red Figure), and multi-colored figures painted on a white ground (White Ground).

Approximate date: First millennium B.C.

d. Terra Sigillata—Is a high-quality tableware made of red to reddish brown clay and covered with a glossy slip.

Approximate date: Roman.

e. Middle Ages Pottery—Includes undecorated plain wares, utilitarian wares, tableware, serving and storage jars, and special containers such as pilgrim flasks. These can be matte painted or glazed, including incised as “sgraffito,” stamped, and with elaborate polychrome decorations using floral, geometric, human, and animal motifs.

3. Seals—On the handles and necks of bottles (amphorae).

Approximate date: First millennium B.C. through Middle Ages.

D. Bone, Ivory, Horn, Wood, and other Organics

1. Small Statuary and Figurines—Subject matter includes human and animal figures and groups of figures in the round. These range from approximately 10 cm to 1 m in height.

Approximate date: Paleolithic through Middle Ages.

2. Personal Ornaments—In bone, ivory, wood, and spondylus shell. Types include amulets, combs, pins, spoons, small containers, bracelets, buckles, and beads.

Approximate date: Paleolithic through Middle Ages.

3. Seals and Stamps—Small devices with at least one side engraved with a design for stamping or sealing; they can be discoid, cuboid, conoid, or in the shape of animals or fantastic creatures ( e.g., a scarab).

Approximate date: Neolithic through Middle Ages.

4. Tools and Weapons—In bone, horn, and wood. Needles, awls, chisels, axes, hoes, picks, and harpoons.

Approximate date: Paleolithic through Middle Ages.

E. Glass and Faience

1. Vessels—Shapes include small jars, bowls, animal shaped, goblet, spherical, candle holders, and perfume jars (unguentaria).

Approximate date: First millennium B.C. through A.D. 1750.

2. Beads—Globular and relief beads.

Approximate date: Bronze Age through Middle Ages.

F. Paintings

1. Domestic and Public Wall Painting—These are painted on mud plaster, lime plaster (wet—buon fresco—and dry—secco fresco); types include simple applied color, bands and borders, landscapes, scenes of people and/or animals in natural or built settings.

Approximate date: First millennium B.C. through A.D. 1750.

2. Tomb Paintings—Paintings on plaster or stone, sometimes geometric or floral but usually depicting gods, goddesses, or funerary scenes.

Approximate date: First millennium B.C. through 6th century A.D.

G. Mosaics —Floor mosaics including landscapes, scenes of humans or gods, and activities such as hunting and fishing. There may also be vegetative, floral, or decorative motifs.

Approximate date: First millennium B.C. through A.D. 1750.

The categories of Bulgarian ecclesiastical ethnological objects on which import restrictions are imposed were made from the beginning of the 4th century A.D. through approximately A.D. 1900.

A. Stone

1. Architectural Elements—In marble and other stone, including thrones, upright “closure” slabs, circular marking slabs ( omphalion ), altar partitions, and altar tables which may be decorated with crosses, human, or animal figures.

2. Monuments—In marble and other stone; types such as ritual crosses, funerary inscriptions.

3. Vessels—Containers for holy water.

4. Reliefs—In steatite or other stones, carved as icons in which religious figures predominate in the figural decoration.

B. Metal

1. Reliefs—Cast as icons in which religious figures predominate in the figural decoration.

2. Boxes—Containers of gold and silver, used as reliquaries for sacred human remains.

3. Vessels—Containers of lead, which carried aromatic oils and are called “pilgrim flasks.”

4. Ceremonial Paraphernalia—In bronze, silver, and gold including censers (incense burners), book covers, processional crosses, liturgical crosses, archbishop's crowns, buckles, and chests. These are often decorated with molded or incised geometric motifs or scenes from the Bible, and encrusted with semi-precious or precious stones. The gems themselves may be engraved with religious figures or inscriptions. Ecclesiastical treasure may include all of the above, as well as rings, earrings, and necklaces (some decorated with ecclesiastical themes) and other implements ( e.g., spoons, baptism vessels, chalices).

C. Ceramic —Vessels which carried aromatic oils and are called “pilgrim flasks.”

D. Bone and Ivory Objects —Ceremonial paraphernalia including boxes, reliquaries (and their contents), plaques, pendants, candelabra, stamp rings, crosses. Carved and engraved decoration includes religious figures, scenes from the Bible, and floral and geometric designs.

E. Wood —Wooden objects include architectural elements such as painted wood screens (iconostases), carved doors, crosses, painted wooden beams from churches or monasteries, furniture such as thrones, chests, and other objects, including musical instruments. Religious figures predominate in the painted and carved figural decoration. Ecclesiastical furniture and architectural elements may also be decorated with geometric or floral designs.

F. Glass —Vessels of glass include lamps and candle sticks.

G. Textile —Robes, vestments and altar cloths are often of a fine fabric and richly embroidered in silver and gold. Embroidered designs include religious motifs and floral and geometric designs.

H. Parchment —Documents such as illuminated ritual manuscripts occur in single leaves or bound as a book or “codex” and are written or painted on animal skins (cattle, sheep/goat, camel) known as parchment.

I. Painting

1. Wall Paintings—On various kinds of plaster and which generally portray religious images and scenes of Biblical events. Surrounding paintings may contain animal, floral, or geometric designs, including borders and bands.

2. Panel Paintings (Icons)—Smaller versions of the scenes on wall paintings, and may be partially covered with gold or silver, sometimes encrusted with semi-precious or precious stones, and are usually painted on a wooden panel, often for inclusion in a wooden screen (iconostasis). May also be painted on ceramic.

J. Mosaics —Wall mosaics generally portray religious images and scenes of Biblical events. Surrounding panels may contain animal, floral, or geometric designs. They are made from stone and glass cut into small bits ( tesserae ) and laid into a plaster matrix.

This rule involves a foreign affairs function of the United States and is, therefore, being made without notice or public procedure under 5 U.S.C. 553(a)(1). For the same reason, a delayed effective date is not required under 5 U.S.C. 553(d)(3).

Executive Orders 12866 (as amended by Executive Order 14994) 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 (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. CBP has determined that this document is not a regulation or rule subject to the provisions of Executive Orders 12866 and 13563 because it pertains to a foreign affairs function of the United States, as described above, and therefore is specifically exempted by section 3(d)(2) of Executive Order 12866 and, by extension, Executive Order 13563.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, requires an agency to prepare and make available to the public a regulatory flexibility analysis that describes the effect of a proposed rule on small entities ( i.e., small businesses, small organizations, and small governmental jurisdictions) when the agency is required to publish a general notice of proposed rulemaking for a rule. Since a general notice of proposed rulemaking is not necessary for this rule, CBP is not required to prepare a regulatory flexibility analysis for this rule.

This regulation is being issued in accordance with 19 CFR 0.1(a)(1) pertaining to the Secretary of the Treasury's authority (or that of the Secretary's delegate) to approve regulations related to customs revenue functions.

Troy A. Miller, the Senior Official Performing the Duties of the Commissioner, having reviewed and approved this document, has delegated the authority to electronically sign this document to the Director (or Acting Director, if applicable) of the Regulations and Disclosure Law Division for CBP, for purposes of publication in the Federal Register .

For the reasons set forth above, part 12 of title 19 of the Code of Federal Regulations (19 CFR part 12), is amended as set forth below:

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 vessel MAZAPETA is partially submerged within Little Potato Slough and the Coast Guard must oversee salvage and pollution removal operations and did not receive final details of the plan until January 8, 2024. It is impracticable to publish an NPRM because we must establish this safety zone by January 10, 2024.

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 salvage and pollution removal operations to begin on January 10, 2024.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port (COTP) San Francisco has determined that potential hazards associated with the salvage and pollution removal operations of the vessel MAZAPETA beginning January 10, 2024, will be a safety concern for anyone within a 100-yard radius of the barges and vessels in Little Potato Slough. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone during salvage and pollution removal operations.

This rule establishes a safety zone from 5 a.m. on January 10, 2024, until 11 p.m. on January 17, 2024. The safety zone will cover all navigable waters within 100 yards of vessels and machinery being used in the salvage and pollution removal operations of the tug MAZAPETA. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters while the vessel is being raised and pollution is being removed. 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 section 3(f) of Executive Order 12866, as amended by Executive Order 14094 (Modernizing Regulatory Review). Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on size, location, and duration of the safety zone. The amount of vessel traffic through Little Potato Slough during the duration of the zone is not anticipated to interfere with salvage and pollution removal operations. The Coast Guard will issue a Broadcast Notice to Mariners about the safety zone to inform the public.

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 that will prohibit entry within 100 yards of vessels and barges being used in the salvage and pollution removal operations of the vessel MAZAPETA. 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:

Section 482(c)(1) of the Higher Education Act of 1965, as amended (HEA), requires that regulations affecting programs under title IV of the HEA be published in final form by November 1 prior to the start of the award year (July 1) to which they apply. Section 482(c)(2) of the HEA also permits the Secretary to designate any regulatory provision as one that an entity subject to the provision may choose to implement earlier and to outline the conditions for early implementation.

On July 10, 2023, the Department published in the Federal Register a final rule amending regulations related to income-driven repayment (88 FR 43820). In that final rule we designated certain provisions for early implementation. In addition, on October 23, 2023, the Department published in the Federal Register a document announcing early implementation of provisions related to income-driven repayment (88 FR 72685).

The Secretary is exercising his authority under section 482(c) of the HEA to designate an additional regulatory change made in that final rule for early implementation beginning on January 21, 2024.

Under § 685.209(k)(3), a borrower receives forgiveness if the borrower's total original principal balance on all loans that are being paid under the Revised Pay as You Earn (REPAYE) plan was less than or equal to $12,000, after the borrower has satisfied 120 monthly payments or the equivalent, plus an additional 12 monthly payments or the equivalent over a period of at least 1 year for every $1,000 if the total original principal balance is above $12,000. See 88 FR 43820, 4390 3. Under the regulations, the REPAYE plan is also known as the Saving on a Valuable Education (SAVE) plan. The Department will implement this provision on January 21, 2024.

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

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

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

Pursuant to the Copyright Alternative in Small-Claims Enforcement Act of 2020 (the “CASE Act”), the Copyright Office created the Copyright Claims Board (the “CCB”), an alternative and voluntary forum for parties seeking to resolve certain copyright-related disputes. 1 The CASE Act directed the Register of Copyrights to “establish regulations to provide for the consideration and determination, by not fewer than 1 Copyright Claims Officer, of any claim under this chapter in which total damages sought do not exceed $5,000 (exclusive of attorneys' fees and costs).”  2 The Office has engaged in several rulemakings to establish the procedures necessary to implement the CASE Act.

On December 8, 2021, the Office published a notice of proposed rulemaking (“NPRM”) that, among other topics, addressed procedures for “smaller claims” proceedings. 3 Under the proposed rule, smaller claims proceedings would be heard by one Copyright Claims Officer and discovery would be limited to that available in standard CCB proceedings. 4 Additional discovery, including requests for expert testimony, would be prohibited, and the Officer would issue a determination based solely on the parties' written testimony without holding a hearing. 5 In response to public comments, the Office decided to implement a “more expedited and less formal process” for smaller claims than the NPRM proposed. 6 On May 17, 2022, the Office published a final rule (the “May 2022 Rule”) that reflected those changes. 7

The May 2022 Rule provided that the smaller claims process would rely on “written submissions and informal conferences to minimize party burdens” and “allow[ ] the presiding Officer to take a more active role in case management.”  8 Smaller claims proceedings would no longer use the same discovery rules as standard CCB proceedings. Instead, discovery would be “significantly limited, if allowed at all,” and the scope of any permitted discovery would be discussed during an initial conference. 9 The May 2022 Rule “allow[ed] for a party position statement, a merits conference to discuss the evidence and the issues presented, a tentative finding of facts by the presiding Officer, the opportunity for parties to respond to those findings, and a final determination.”  10 The May 2022 Rule also included several clarifications, including specifying when claimants must choose whether they want smaller claims proceedings, how counterclaims impact this choice, and the content of initial and second notices for smaller claims proceedings. 11 The Office explained that this “updated, streamlined procedure for smaller claims substantially addresses commenters' concerns, will provide a clear alternative to both the CCB's standard proceeding and to Federal litigation, and will ultimately incentivize claimants to use the CCB's smaller claims procedures where appropriate.”  12

Concurrent with the publication of the May 2022 Rule, the Office sought further comment regarding the smaller claims process. 13 This second opportunity to comment was intended to help determine whether the updated regulations struck “the proper balance between streamlining the smaller claims process and providing sufficient procedural protections to all parties.”  14

The Office received two further comments, from the Copyright Alliance and the New York Intellectual Property Law Association (“NYIPLA”). 15 These comments are addressed in detail below.

The May 2022 Rule provided that a claimant may request that the smaller claims procedures apply when filing its claim, and also that “[t]he claimant may change its choice as to whether to have its claim considered under the smaller claim[s] procedures at any time before service of the initial notice.”  16 The Copyright Alliance noted that this language “seems to suggest that a claimant who initially chooses to have the proceeding considered under the smaller claims procedures may be able to change their choice and have the proceeding considered under standard small claims procedures, but that a claimant who initially opts to have the proceeding considered under the standard small claims procedures may not have that same opportunity.”  17 The Copyright Alliance recommended that the Office clarify this provision and “also include reference to the opportunity for claimants to change their choice in another section of the regulations.”  18

The Office intended for the current regulations to allow a claimant to change its election of which procedures to use before service of the initial notice, regardless of its original election. Considering the Copyright Alliance's comments, however, the Office has modified the regulatory language to clarify that rule. 19 The Office declines to take the Copyright Alliance's suggestion to duplicate this language in other sections of the regulations. The Office notes that several chapters of the CCB Handbook, a plain language resource for CCB parties, also reference claimants' ability to change their election of small or smaller claims procedures. 20

The regulations also allow a claimant to change its election after service, so long as the other parties and the CCB consent. 21 The Copyright Alliance suggested there should be no opportunity for a claimant to change its election after service of the initial notice, even if the respondent agrees to the change. The Copyright Alliance argued for this restriction on the grounds that a claimant who wishes to change their choice after service “has the ability to withdraw their claim and file it again to reflect the new choice.”  22

The Office disagrees that a strict deadline is advisable and believes that a more flexible approach is preferable in a forum that is intended to be accessible to pro se parties. Requiring consent from the other parties and the CCB should be sufficient to protect against abuse of the election process.

In its comment, the Copyright Alliance also noted that the regulations give the Officer presiding over a smaller claims proceeding the authority to “issue additional scheduling orders or amend the scheduling order,” indicating that there may be a difference between an additional scheduling order and an amended scheduling order. 23 The Copyright Alliance sought clarification on this point. 24

Under the regulations, the initial scheduling order in a smaller claims proceeding includes “the dates or deadlines for filing of a response to the claim and any counterclaims by the respondent and an initial conference with the Officer presiding over the proceeding.”  25 That Officer may issue an additional scheduling order that includes dates or deadlines beyond those in the initial scheduling order, such as dates of other conferences or deadlines for discovery. An amended scheduling order is used to change the dates in a preexisting scheduling order, such as rescheduling the deadline for filing a response set forth in the initial scheduling order. In light of this explanation, the Office does not believe a regulatory change is necessary.

The Copyright Alliance also sought clarification on regulatory language that provides that “[i]f a party fails to submit evidence in accordance with the presiding Officer's request, or submits evidence that was not served on the other parties or provided by the other side, the presiding Officer may discuss such failure with the parties during the merits conference.”  26 The Copyright Alliance observed that “the phrase `such failure' can only be read to refer back to the first clause (referencing the party's failure to submit evidence) and not the second clause (referencing a party's submission of evidence that was not served on the other parties) since the latter is not phrased as a `failure.' ”  27 The Copyright Alliance further noted that the regulations permit the Officer to draw an adverse inference as a remedy for the failure to submit evidence but does not mention remedies for the submission of evidence that was not served on or provided by other parties. 28

The Copyright Alliance is correct that the Office's intent was that both issues—the failure to submit evidence and the submission of evidence that was not served on or provided by the other parties—could be addressed during conferences and that the presiding Officer was empowered to impose remedies for either issue. The Office has revised the corresponding regulatory text to make clear that the Officer may discuss with the parties and impose appropriate remedies to address either issue. The Office notes, and the regulatory text provides, that although imposition of an adverse inference is one remedy that is available to an Officer, there may be other appropriate remedies, such as excluding evidence that was not properly served or providing the other parties an opportunity to respond to such evidence. 29

Current CCB regulations allow parties in a smaller claim proceeding to submit a written statement setting forth their positions on the issues prior to the merits conference, but do not permit any written responses to these statements. 30 The NYIPLA recommended that parties be allowed to submit written responses, arguing that “it is important that parties before the CCB be afforded the right to respond to the statements and evidence initially submitted by their opponents” and “to permit some form of rebuttal submission in advance of the merits conference.”  31 The NYIPLA argued that written responses would also “provide the other side with fuller notice of what its opponent's rebuttal case will consist of at the merit conference” and “are generally an effective means of responding to another party's argument.”  32

The Office declines to make the requested changes at this time. The smaller claims procedures are intended to provide a streamlined and less formal process than standard CCB procedures. Consequently, the Office's regulations sought to minimize the filings in smaller claims proceedings to reduce the burdens on the parties, ensure that the timeline is not protracted, and distinguish the smaller claims procedures from standard CCB procedures. The Office believes that providing parties with a single opportunity to submit an optional written statement ensures fairness, especially with respect to both parties represented by counsel and those appearing pro se, while recognizing that some parties will be more comfortable communicating their positions in writing than orally. As the NYIPLA recognizes, parties will have an opportunity to respond to any written statements during the merits conference. 33 At the merits conference, the presiding Officer will be able to ask questions and develop the parties' positions further.

Under the CCB's current regulations, if a claimant has selected a smaller claims proceeding, a respondent may bring a counterclaim that seeks only $5,000 or less in damages, exclusive of attorneys' fees and costs. 34 As the May 2022 Rule explains, “[a] respondent who is not content with a counterclaim limited to $5,000 may decline to use the smaller claims track and either use the standard proceeding by bringing a separate claim against the original claimant or bring the claim to Federal court.”  35 The NYIPLA disagreed with this approach and recommended that the regulations “provide for reassignment from the smaller claim track for any proceeding in which a respondent wishes to assert within the CCB a counterclaim that would be eligible only for the non-smaller claim track.”  36 The NYIPLA argued that the benefits of the smaller claims proceeding “are lost, and the complexity compounded, if two concurrent proceedings are running simultaneously, under different procedures, particularly where both may, in some cases, involve similar questions of fact and law.”  37 The NYIPLA expressed concern about the logistics of consolidating a smaller claims proceeding with a standard CCB proceeding and the possibility of inconsistent determinations in the event that they are not consolidated. 38

The Office declines to implement this proposed change. One of the key features of the CCB is its voluntary nature—including the parties' ability to choose whether to participate, given the matters at issue and the scope of the proceeding. This feature could be frustrated were a respondent able to unilaterally move a claim from the relatively streamlined smaller claims process the claimant had selected to the standard CCB process.

The Office appreciates the NYIPLA's concerns regarding the current process for consolidating proceedings before the CCB and the possibility of inconsistent determinations if two claims addressing similar facts are not heard together. To address these concerns, the Office is revising its regulations pertaining to consolidation. The revised rule addresses circumstances in which two proceedings—a smaller claims proceeding and a standard CCB proceeding—involve the same or substantially similar parties and arise out of the same facts and circumstances. This includes instances in which a claimant selects the smaller claims procedures, and the respondent files a separate claim, rather than asserting a counterclaim subject to the $5,000 cap on damages. The amended regulations state that, in such a situation, the Officers may hold a conference to determine whether the parties would be willing to consolidate their dispute into a single proceeding using either the standard CCB or smaller claims procedures. If the parties do not agree to consolidate their claims, the proceedings will continue on separate tracks.

The Office does not intend to add additional rules governing the possibility of inconsistent determinations related to smaller claims proceedings, as it concludes that the risk of inconsistent determinations is low and the CCB's regulations should be as straightforward and streamlined as possible. Moreover, while the Officers make smaller claims determinations independently, they are aware of all determinations issued by the CCB, and the Officer presiding over a smaller claims proceeding and any standard proceeding that involves similar parties or issues would be able to identify and avoid any potential inconsistency in the separate determinations.

The NYIPLA also commented on witness appearances in smaller claims proceedings. 39 The regulations permit a party to request that a witness appear at the merits conference for questioning if an opposing party has submitted that witness's statement beforehand. 40 Under the regulations, if the witness does not appear, the presiding Officer may still accept the witness's statement, but they may consider the inability to question when determining how much weight to give the witness's testimony. 41 The NYIPLA suggested that “the rule should more clearly set forth the Officer's discretion to exclude altogether the statement of a witness who fails to appear following an opponent's request,” arguing that this change may encourage parties to make their witnesses available for cross-examination at the merits conference. 42

The Office finds this recommendation is unnecessary, and not sufficiently responsive to the practical challenges related to witnesses' appearances. The CCB is already empowered to determine what weight, if any, should be given to the evidence. 43 Since it does not have the authority to subpoena witnesses, witnesses appear at merits conferences on a voluntary basis. The regulations are drafted with the understanding that a witness may agree to submit a statement but may not wish to appear at the merits conference for any reason, including reasons that have nothing to do with the value of the statement. For example, a witness may not be able to take time off from work or have a personal conflict making an appearance burdensome. Even if potential evidentiary consequences might influence the behavior of the parties, they are unlikely to affect the witness' decision to give live testimony. The current regulations, which give the presiding Officer the authority to give any (or no) weight to witnesses' testimony, better reflect the balance of interests at stake in CCB proceedings.

The Office appreciates these comments and will be monitoring how the regulations are functioning to determine if any future changes are needed. Apart from the modifications described above, the smaller claims regulations remain unchanged from the May 2022 Rule.

For the reasons stated in the preamble, the U.S. Copyright Office amends 37 CFR parts 220, 222, and 226 as follows:

The 85/15 rule (38 U.S.C. 3680A(d); 38 CFR 21.4201(a)) prohibits the Department of Veterans Affairs (VA) from paying educational assistance benefits to any new students once “more than 85 percent of the students enrolled in the [program of education] are having all or part of their tuition, fees, or other charges paid to or for them by the educational institution or by the Department of Veterans Affairs.” 38 U.S.C. 3680A(d)(1). “Institutional aid” refers to the financial assistance that is provided by the educational institution to the student that includes any scholarship, aid, waiver, or assistance, but does not include loans and funds provided under section 401(b) of the Higher Education Act of 1965 or financial assistance from a third-party. “VA aid” refers to financial benefits paid under Chapters 30, 31, 33, 35 and 36 of Title 38 and Chapter 1606 of Title 10. VA refers to students who receive such institutional or VA aid as “supported students.” Conversely, no less than 15 percent of the students enrolled in the program must be attending without having any of their tuition, fees, or other charges paid to or for them by the educational institution or VA (referred to as “non-supported students”). The 85/15 rule is a market validation tool designed to prevent schools from inflating tuition charges for VA education beneficiaries. The rule functions by requiring a school to enroll no less than 15 percent of its students paying the full tuition charge without institutional or VA aid. If a school fails to enroll enough non-supported students, the cost of the program is presumed to be out of step with the competitive market and thus too expensive for VA to continue to support due to the burden on taxpayers.

Currently, in accordance with 38 CFR 21.4201, educational institutions are required to track the percentage of supported and non-supported students enrolled in each of their approved programs and to confirm their compliance with the required 85/15 percent ratio (38 CFR 21.4201(e)-(f)). During the time that the ratio of supported to non-supported students exceeds 85 percent, no new students can be certified to receive VA education benefits for that program (38 CFR 21.4201(g)(2)). “New students” include students returning after a break in enrollment unless the break is wholly due to circumstances beyond the student's control (38 CFR 21.4201(g)(6)). The 85/15 rule does allow VA to continue to pay benefits for students already enrolled in the program and receiving benefits prior to the ratio of supported students exceeding 85 percent of the total population enrolled in the program (38 CFR 21.4201(g)(2)). Further, although students receiving Veteran Readiness and Employment (38 U.S.C. chapter 31) or Survivors' and Dependents' Educational Assistance (38 U.S.C. chapter 35) benefits must be counted as supported students when calculating 85/15 rule compliance, VA notes that the rule does not prohibit the enrollment of new chapter 31 and chapter 35 students while the 85 percent ratio is exceeded. The rules regarding reporting requirements and how individual students must be assessed based on their program of education and campus location are detailed in 38 CFR 21.4201. Specifically, paragraph (e) details the rules regarding how to compute the 85/15 percent ratio, and paragraph (e)(2) provides special rules by which some students, even though they are in receipt of institutional aid, are nonetheless counted as “non-supported students.”

VA is amending 38 CFR 21.4201(e)(2) to define “non-supported students” and “supported students” and remove paragraphs (e)(2)(i) through (e)(2)(iv), which diminish the effectiveness of the market validation mechanism of the rule. Although 38 U.S.C. 3680A(d)(1) explicitly states that the 85 percent side of the ratio ( i.e., the supported student count) should include all students “having all or part of their tuition, fees, or other charges paid to or for them by the educational institution or by the Department of Veterans Affairs,” current VA regulations at 38 CFR 21.4201(e)(2) create tension with this essential goal of the 85/15 rule by providing four categories of students who are considered “non-supported” students notwithstanding their receipt of institutional aid. Currently, the four categories of such “non-supported” students are as follows: (1) non-Veteran students not in receipt of institutional aid; (2) all graduate students receiving institutional aid; (3) students in receipt of any Federal aid (other than VA benefits); and (4) undergraduate and non-college degree students receiving any assistance provided by the educational institution, if the institutional policy for granting this aid is the same for Veterans and non-Veterans alike. VA is removing all four categories.

Removal of the first and third categories will have no impact because these students are already considered “non-supported,” as they are not receiving institutional or VA aid. Regarding whether Federal aid (other than VA benefits), such as student loans and grants, is considered “institutional aid,” VA has never considered it to be institutional aid and will continue to not consider it institutional aid. Through this final rule (as further detailed below in the section titled REMOVAL OF INSTITUTIONAL AID EXEMPTION), VA is adding a regulatory definition that clarifies why it is not appropriate to classify Federal, state, or municipal grant funding as “institutional aid.” Therefore, recipients of these funds are to be counted as “non-supported,” barring receipt of other prohibited funding. Consequently, the removal of these “exclusions,” which are not included to begin with, amounts to a clarification of current practice since their numbers would remain on the 15 percent side of the ratio calculation.

The practical impact is in the removal of the second and fourth categories, which provide that students can be in receipt of institutional aid and still be considered non-supported. These two categories (and particularly the fourth category) have created loopholes that educational institutions have exploited since the inception of the Post-9/11 GI Bill (PGIB). The problem stems from the fact that the PGIB pays up to the full amount of tuition and fees directly to educational institutions. This is unlike prior VA educational benefits implemented since 1952, from the Korean War GI Bill through the Montgomery GI Bill, for which VA pays a one-size-fits-all stipend amount directly to the beneficiary, and the beneficiary then pays tuition, fees, or other approved education-related expenses to the school using the stipend and/or other means. Under the prior model, if the tuition and fees exceed the stipend amount, then the beneficiary incurs out-of-pocket costs. By the same token, if the tuition and fees are less than the stipend amount, then the beneficiary may apply the funds towards other education costs. When beneficiary payments are structured this way, there is no incentive for an educational institution to inflate costs, as such a tactic might drive VA beneficiaries away in a competitive free market. Conversely, since under the PGIB, VA pays the net charges for tuition and fees (subject to benefit level and statutory caps for certain types of educational institutions) directly to the educational institution, the same competitive market forces do not apply. Consequently, the only students who can serve to validate the cost effectiveness of the program are those non-supported students who are counted on the 15 percent side of the 85/15 rule. However, given that the provisions in sections 21.4201(e)(2)(ii) and (iv) stipulate that certain scholarship recipients are to be considered “non-supported,” a school can meet its 15 percent non-supported requirement while providing scholarships to some number of students so long as the students are graduate level, or the terms of the scholarship are such that Veterans and non-Veterans alike may qualify. These students are likewise not motivated by competitive free market forces because their actual charges for tuition and fees are reduced. Because these students are allowed, through sections 21.4201(e)(2)(ii) and (iv), to be considered “non-supported,” they serve as a false-positive market validation for the tuition and fee charges levied on VA. This undermines the operative mechanism of the 85/15 rule by allowing schools to inflate their tuition and fees since there is no longer an effective counterweight.

The original GI Bill (for Veterans of World War II, in effect from 1944 to 1948) also paid tuition and fees directly to schools and was fraught with abuses and overcharges by schools. After investigating the abuses of the original GI Bill, Congress, when designing the successor Korean War GI Bill, took steps to eliminate such abuses by making payments directly to students and by instituting the 85/15 rule. Now that PGIB once again pays tuition and fees directly to schools, and having witnessed the same abuses seen under the original GI Bill, VA needs to restructure its implementation of the 85/15 rule to give the rule the force it was originally intended to have when payments are being made directly to schools. As this presents an immediate exploitation of taxpayers' investment in Veterans' education and training, VA must emphasize the fundamental objective of the rule and strictly adhere to the requirement that students counted on the 15 percent side of the 85/15 rule are not “having all or part of their tuition, fees, or other charges paid to or for them by the educational institution or by the Department of Veterans Affairs.” VA is accomplishing this by removing all exceptions listed in section 21.4201(e)(2), thus ensuring that every student who receives institutional or VA aid will be counted as a “supported student.”

These changes also clarify requirements for schools, thereby making it easier for schools operating in good faith to remain in compliance. The current various classifications of students are difficult for the School Certifying Officials (SCO) at educational institutions to follow, which can lead to improper payments and overpayments. Currently, when school officials have questions about making accurate student count calculations, they must individually reach out to their state Education Liaison Representative or VA staff in Washington, DC. As a result, the guidance they receive may be delayed or vary slightly depending upon the source. Further, some schools may opt not to seek VA guidance and instead rely on their own interpretations of the 85/15 rule. All of these scenarios have resulted in non-supported calculations by schools which do not reflect the intent of the regulation's underlying statute. The removal of all four current exceptions to the “non-supported” side of the 85/15 ratio will simplify the calculation of the 85/15 ratio—meaning, any student receiving any funding from either VA, or the school will be considered “supported.” Further, these amendments will resolve related compliance process issues by removing ambiguity about the appropriate classification of students in receipt of aid. These regulatory amendments will both simplify and promote consistency in calculating and reporting 85/15 counts and will better align the regulation with its underlying statute.

There may be instances where certain schools have a large percentage of their students (both Veteran and non-Veteran alike) in receipt of institutional aid, even if the amount of the aid is insignificant. In these situations, it is unlikely that the school's institutional aid program is a subterfuge to disguise tuition inflation while complying with the 85/15 rule. In response to any concerns that such schools would be unfairly placed in noncompliance with the 85/15 rule by operation of this rule, VA notes that whenever an educational institution exceeds the 85 percent limit, it may apply for a waiver of the 85/15 rule under 38 CFR 21.4201(h). Accordingly, VA is amending section 21.4201(h) to allow an education institution to demonstrate that although its program is in violation of 85/15, its non-VA scholarship recipients are effectively serving as market validation, and, therefore, continued enrollment of new VA education beneficiaries is nonetheless in the best interest of the students and the Federal government. Consequently, the elimination of section 21.4201(e)(2) does not mean that all generous schools will be eliminated from the GI Bill. It merely means that, on a case-by-case basis, a well-intentioned generous school could be granted a waiver while simultaneously limiting the potential for miscalculations and misapplication of scholarship information, whether intentional or unintentional.

Regarding the current 85/15 waiver criteria, VA further amends the criteria found at 38 CFR 21.4201(h) by removing paragraphs (2) and (3) while leaving paragraph (1) in place and modifying paragraph (4). This is necessary because, while current regulations list four criteria to be considered, only paragraphs (1) and (4) (the availability of comparable education facilities effectively open to Veterans in the vicinity of the school requesting a waiver; and the general effectiveness of the school's program in providing educational and employment opportunities to the Veteran population it serves) are cogent indicators of a program's qualifications to obtain a waiver.

Paragraph (2) only applies to schools in receipt of a Strengthening Institutions Program grant or a Special Needs Program grant administered by the Department of Education (ED). The Strengthening Institutions Program grant is only available to accredited institutions of higher learning. However, many GI Bill-approved institutions are non-degree granting and thus ineligible for these programs. Specifically, data from a February 2023 study showed that 56% of institutions then approved for receipt of GI Bill institutions, were non-degree granting. Therefore, this criterion is irrelevant when considering waiver requests for such programs. Furthermore, the “Special Needs Program” grants referenced in paragraph (2) as being located in title 34, parts 624-626, of the Code of Federal Regulations no longer exist at that reference. VA rarely receives waiver requests from schools in receipt of either of these grants, so the criterion in paragraph (2) rarely is satisfied. This absence of qualifying schools therefore is not dispositive in the adjudication of waiver requests. Paragraph (3)—previous compliance history of the school—is of no independent value to VA's decision-making because if a school has failed to satisfy the criterion in paragraph (3), then the program's approval would be suspended or withdrawn by the State Approving Agency (SAA). Consequently, by default, the Director of Education Service bases decisions on waiver requests almost exclusively on a school's performance relative to the criteria in paragraphs (1) and (4). However, because paragraphs (2) and (3) are included in this regulation, schools must expend resources to address these criteria in their requests. Likewise, the Director must expend resources to respond to these criteria in his or her decision. Therefore, VA is removing paragraphs (2) and (3) to conserve both school and VA resources. It is important to note that because these criteria have been functionally irrelevant in the adjudication of waiver requests, such a removal will have no substantive effect on the likely outcome of any future waiver request decisions.

Additionally, VA is amending the list of factors to be considered in paragraph (4) because the current list is not particularly helpful to the decision maker. The list contains only two criteria, and one of them—ratio of educational and general expenditures to full-time equivalency enrollment—is difficult to ascertain and verify while also being of questionable utility. Therefore, there is only one practical and pertinent factor—the percentage of Veteran-students completing the entire course—generally left to consider. Accordingly, VA is amending the list to provide a broad range of factors that may be considered (although the list will not be all inclusive). VA is maintaining the current graduation rate factor but adding other factors of graduate employment statistics, graduate salary statistics, satisfaction of Department of Education (ED) rules regarding gainful employment (where applicable), other ED metrics (such as student loan default rate), student complaints, industry endorsements, and participation in and compliance with the Principles of Excellence program, which was established by Executive Order 13607 on April 27, 2012 (published in the Federal Register on May 2, 2012), to ensure that student Veterans, Service members, and family members have information, support, and protections while using Federal education benefits (where applicable), etc. This list is not exhaustive. The Director could, on a case-by-case basis, consider other factors not listed, which provide an indication of the program's general effectiveness. In addition, the Director may consider whether the educational institution's aid program appears to be consistent with or appears to undermine the 85/15 rule's tuition and fee costs market validation mechanism.

Lastly, for educational institutions organized on a term, quarter, or semester basis, the 85/15 calculations currently must be submitted to VA no later than 30 days after the beginning of each regular school term (excluding summer sessions) or before the beginning of the following term, whichever occurs first (38 CFR 21.4201(f)(2)(i)). Educational institutions not organized on a standard term, quarter, or semester basis also must submit their 85/15 calculations to VA, however, no later than 30 days after the beginning of each calendar quarter to which the waiver applies (38 CFR 21.4201(f)(2)(ii)). Consequently, educational institutions with short, non-standard terms that begin and end more frequently than once per calendar quarter may have several terms that begin before VA is notified of failure to comply with the 85/15 rule. To remedy this shortcoming, VA is amending 38 CFR 21.4201(f)(1) and (f)(2)(ii) to require that educational institutions with non-standard terms submit their exemption justification reports and 85/15 percent calculations to VA no later than 30 days after the beginning of each non-standard term. This will provide VA with the opportunity to review compliance reports submitted by educational institutions before approving additional enrollments that impact compliance with the 85/15 rule. This amendment will promote accurate and up-to-date 85/15 calculations, ensure that reporting is done on a fair and consistent basis, and enable VA to base consideration of 85/15 waiver requests on relevant criteria.

In summary, the 85/15 rule was created to prevent training institutions from developing courses solely for GI Bill students and then inflating tuition charges. The 85/15 rule serves as a market validation tool by which the cost of the program is validated by demonstrating that a sufficient number of students (15 percent of the total program enrollment) are willing to pay the full cost of tuition out of pocket. These changes will strengthen the existing 85/15 rule by addressing the regulatory provisions that, over time, have been shown to be ineffective with regard to the rule's intent.

56 comments were received in response to VA's NPRM “85/15 Rule Calculations, Waiver Criteria, and Reports.” Several commenters expressed support for the rule, while several others expressed concerns. VA believes that many of the concerns are best answered via further clarification both in the responses to the substantive comments below and in changes VA is making to the proposed language from the NPRM, also discussed below.

Some commenters requested that VA address Public Law 117-174, the “Ensuring the Best Schools for Veterans Act of 2022,” in the preamble to this rulemaking. VA acknowledges that there has been some confusion as to the content of this rulemaking due to the proximity of its NPRM's publication with the enactment of Public Law 117-174, which was signed into law on August 26, 2022. VA's NPRM “85/15 Rule Calculations, Waiver Criteria, and Reports” was published in the Federal Register (Vol. 87, No. 196) on October 12, 2022. This did not afford VA enough time to address the law in the NPRM or this final rule. While VA has effectively implemented the law and provided guidance to schools on its impacts, VA plans to address it specifically in a future rulemaking. However, VA also will address the law here, as its enactment does have major implications on the impact this rulemaking will have on schools.

Public Law 117-174 clarifies Congressional intent regarding the statutory requirements of the 35 percent exemption to the 85/15 rule. The law provides that an institution that (1) has a Veteran population less than 35 percent of its total student enrollment and (2) has most of its programs approved under section 3672 or 3675 of title 38, U.S.C., is statutorily exempt from all 85/15 requirements including reporting, computing, monitoring, and complying with 85/15 ratios. As one commenter noted, “virtually all public and non-profit colleges and universities qualify for this exemption: they have veteran populations below 35 percent—typically well below that threshold and often in the single digits—and the majority of their programs are typically approved under section 3672 or 3675.” VA agrees with this commenter. Due to the changes made by Public Law 117-174, presumably a large percentage of GI Bill schools will be exempt from the 85/15 rule because they are accredited schools with less than 35 percent of their student population being Veterans. The changes made by this final rule will therefore have no functional impact on these exempt schools, as the 85/15 rule is irrelevant to them. Therefore, while this rulemaking does not implement Public Law 117-174, any review, analysis, and evaluation of the 56 public comments must keep in mind the inapplicability of the changes made in this final rulemaking to a large percentage of GI Bill-approved schools that are exempt from the 85/15 requirements due to the law. As of May 25, 2023, 57 percent of all GI Bill-approved schools are exempt from 85/15 under Public Law 117-174 and therefore are unaffected by the rules contained herein (out of the 9,247 education training institutions approved for GI Bill benefits, there are 5,257 schools with 35 percent exemptions on record with the VA and more are being added each day). Thus, this rulemaking does take Public Law 117-174 into account while not attempting to implement that law.

VA makes no changes to the rule based on these comments.

One commentor expressed concern regarding the lack of information provided to schools about the “timeline” of the implementation of the proposed rulemaking.

VA disagrees that insufficient notice of a potential change has been provided. VA has provided ample information concerning the implementation process of the proposed rule to the public, which includes schools, via the rulemaking process. Further, a VA communications plan was executed following the NPRM's publication to encourage its primary stakeholders, schools, to both acquaint themselves with and comment on the rulemaking.

The notification of the implementation of a proposed rulemaking was conducted pursuant to the Administrative Procedure Act's notice and comment process for agency rulemaking, found in 5 U.S.C. 553. This “notice and comment” process requires Government agencies to notify the public through the Federal Register of a proposed new or revised rule, and to accept and consider public comments. VA's proposal to revise its educational assistance regulations in the rulemaking titled “AR56—85/15 Rule Calculations, Waiver Criteria, and Reports” was submitted to the Federal Register and published on October 12, 2022. This published “notice of proposed rulemaking” announced the proposed regulation to the public, provided a detailed description of the planned regulation and its legal basis, and allowed the public the opportunity to submit written comments concerning the proposed regulation.

However, as a prudential matter, VA believes it is in the best interest of the students, schools, and the Federal government to provide schools with an extended amount of time after publication of the final rule to prepare for and mitigate any impacts these new rules may have. Therefore, VA will delay the applicability date to one year after the publication of this final rule to ensure both that VA will have adequate time to train schools as much as needed about the regulatory provisions herein and that schools will have enough time to implement any necessary changes in their policies to comply with these provisions.

One commentor requested that VA revise the definition of “institutional aid” in 38 CFR 21.4201(e)(2) by narrowing it to the receipt of tuition and mandatory fees only.

In response, VA notes that 38 U.S.C. 3680A(d)(1) explicitly states that “other charges paid to or for [students] by the educational institution” are to be included in the 15 percent calculation; therefore, VA is required by law to include charges other than tuition and mandatory fees in its definition of institutional aid. Excluding “other charges” would require Congressional action to amend the statutory language.

As such, VA makes no changes to the rule based on this comment.

Some commenters opposed VA making any changes to the definition of “supported students,” concerned that classifying students in receipt of any type of institutional aid, regardless of monetary amount, as “supported” will significantly increase the amount of supported students.

In contrast, one commentor noted how the existing language “seems to favor schools” by letting them claim students in receipt of institutional aid as non-supported, which helps them reach the required 15 percent, and how it “creates space for institutions looking to raise tuition prices by disguising supported students” as non-supported.

VA agrees that by categorizing students in receipt of any institutional aid, regardless of monetary amount, as “supported,” the number of supported students, as counted for the 85/15 rule, will increase, and in some cases, this could result in a significant increase of supported students for individual institutions and programs. However, VA makes no changes based on these comments, as this is the unavoidable impact of these changes to more closely align to the statutory language.

As stated in the preamble to the NPRM, VA is aligning this regulation more directly with the language of 38 U.S.C. 3680A(d)(1), which explicitly states that the 85 percent side of the ratio ( i.e., the supported student count) should include all students “having all or part of their tuition, fees, or other charges paid to or for them by the educational institution or by the Department of Veterans Affairs.” The original language for the exemptions was introduced in 1979 with changes through the current language, which was last updated in 1990. The Secretary has the authority to make these exceptions under 38 U.S.C. 3680A(d)(2) if they are “in the interest of the eligible veteran and the Federal Government.” Recent enforcement actions by the Department of Justice (DOJ) show that the loopholes created by the existing language are no longer in the interest of beneficiaries or the Federal Government. 1

Additionally, VA believes the impact on institutions will be significantly less than commenters opposing the proposed definition of “supported” may believe. VA agrees that the proposed definition could be more problematic for institutions if it were applicable to a large portion of institutions. However, a large portion of training facilities are exempt from the 85/15 rule because they qualify for the 35 percent exemption. Furthermore, as discussed in the Ensuring the Best Schools for Veterans Act of 2022 section of this preamble, Public Law 117-174 clarifies Congressional intent regarding the statutory requirements of the 35 percent exemption to the 85/15 rule and broadens the exemption. Moreover, any educational institution exceeding the 85/15 threshold has the option to apply for a waiver, as provided in 38 U.S.C. 3680A(d)(2) and 38 CFR 21.4201(h).

VA makes no changes to the rule based on these comments.

A few commentors disagreed with the calculation of the 85/15 percent ratio. Specifically, commentors were opposed to the removal of the exception category found in 38 CFR 21.4201(e)(2)(iv), which allows students receiving certain institutional scholarships to be counted as “non-supported,” resulting in these students being included on the 15 percent (non-supported) side of the ratio calculation. One commentor stated that the elimination of this exception category would “artificially inflate the number of students counted on the 85 percent [supported] side of the equation.”

VA disagrees with these comments. The exemption in section 21.4201(e)(2)(iv) has been causing supported students to be undercounted in 85/15 calculation; therefore, its removal will result in a more accurate count. Students receiving institutional aid always should have been counted as “supported.” This has been the case since the creation of the 85/15 rule. The 85 percent rule, which can be found at 38 U.S.C. 3680A, was enacted in 1952 to combat predatory school abuses following implementation of the Servicemen's Readjustment Act of 1944. The removal of this exception category returns the 85/15 rule to its original intent of serving as a market validation tool to prevent schools from inflating tuition charges for Veterans using VA educational assistance. VA finds that the exception category in 38 CFR 21.4201(e)(2)(iv) created loopholes which have been exploited by some schools—exploitation that has been exacerbated under the Post-9/11 GI Bill. Closing this loophole is one of the primary purposes of this rulemaking.

Furthermore, removal of the exception in 38 CFR 21.4201(e)(2)(iv) likely will not significantly increase the ratio of “supported” students enrolled in a program because Veterans statistically make up a small percentage of most schools' overall student populations. According to data from the Postsecondary National Policy Institute (PNPI), as of academic year (AY) 2015-16, only 4.9 percent of undergraduate students were Veterans—a small portion of the population attending schools. 2 Also, though some schools with a significant population of disadvantaged students who are receiving institutional aid may result in the educational institution exceeding the 85/15 threshold, the educational institution has the option to apply for an 85/15 waiver, as provided in 38 U.S.C. 3680A(d) and 38 CFR 21.4201.

VA makes no changes to the rule based on these comments.

Some commenters requested for VA to clarify in the final rule that the changes proposed by the rulemaking do not apply to institutions that qualify for the 35 percent exemption, in order to provide clarity for School Certifying Officials (SCO) and Education Liaison Representatives (ELR).

VA concurs with these comments and has explained the impact of the 35 percent exemption in the preamble. For further clarification, please refer to the Ensuring the Best Schools for Veterans Act of 2022 section above. While portions of the newly enacted law and this rulemaking do overlap, as stated earlier, this rulemaking is not implementing the provisions of Public Law 117-174, Ensuring the Best Schools for Veterans Act of 2022. Additionally, VA did not address the 35 percent exemption in the NPRM because VA was not proposing any changes to the 35 percent exemption at the time of publication. However, to alleviate further confusion, VA will address comments regarding the 35 percent exemption.

Some commenters requested for VA to create an exemption that if the total Veteran student ratio is under 35 percent, then the institution would be exempt from having to track the 85/15 ratios.

The 35 percent exemption to all schools is found in statute. Public Law 117-174 modified the statutory requirements of the 35 percent exemption to the 85/15 rule. As the law clarifies, if an institution that (1) has a Veteran population less than 35 percent of its total student enrollment and (2) has most of its programs approved under section 3672 or 3675 of title 38 U.S.C., that institution is statutorily exempt from all 85/15 requirements including reporting, computing, monitoring, and complying with 85/15 ratios. Therefore, this law exempts many schools from the requirement of tracking the 85/15 ratios. VA will address the law more specifically in a future rulemaking, to include consideration of adding a blanket statement of situations in which a school is exempt from having to track 85/15 ratios in VA's regulations.

Some commenters stated concerns that VA is putting more stock in the 35 percent waiver to circumvent the 85/15 reporting and requested that VA find a better way to punish bad actors. One commenter stated that the 35 percent exemption undermines the 85/15 rule because there is no market validation price checking mechanism for campuses that enroll fewer than 35 percent Veteran students overall.

VA notes that the 85/15 ratio and the 35 percent exemption are statutorily mandated. Further, VA did not intend this rule as an enforcement action to “punish bad actors” but rather is revising the 85/15 ratio criteria to better leverage the 85/15 rule as a market validation tool and to better serve the interests of benefit recipients and the Federal government.

Some commenters also requested VA add new language to 38 CFR 21.4201 for further clarification of the 35 percent exemption.

VA will not be adding new language regarding the 35 percent exemption at this time, as the language for the exemption already exists at 38 CFR 21.4201(c)(4). VA did not address the 35 percent exemption in this rulemaking because this rulemaking does not modify said language. However, with the enactment of Public Law 117-174, Congress modified the language that authorizes the 35 percent exemption. VA will address these changes in a future rulemaking.

VA makes no changes to the rule based on these comments.

Several commentors expressed concern that proposed changes to the 85/15 rule could limit choices of undergraduate and graduate Veteran and non-Veteran students. The commenters stated that removing the four exceptions to the 85/15 rule—most notably the fourth exception category in 38 CFR 21.4201(e)(2)(iv), “undergraduate and non-college degree students receiving any assistance provided by the educational institution”—and classifying all students in receipt of any type of institutional aid as “supported” will significantly increase the ratio of “supported” students enrolled in a program. This increase of students counted as supported would, according to these commentors, lead to program suspension due to violation of the 85/15 rule, which would bar new students from enrolling in programs that align with their interests.

VA does not disagree with these commenters' assertions that this rulemaking could produce new violations of the 85/15 rule and possibly new suspensions. However, Congress intentionally chose to enact a statute that limits choices for GI Bill students when “more than 85 percent of the students enrolled in the course are having all or part of their tuition, fees, or other charges paid to or for them by the educational institution or by the Department of Veterans Affairs.” 38 U.S.C. 3680A(d)(1). As previously stated in this preamble and the preamble to the NPRM, this rulemaking is realigning VA's regulation with the existing statute to close loopholes that VA has determined are not in the interest of benefit recipients or the Federal Government.

For additional clarification, a school exceeding the 85 percent threshold will not impact any currently enrolled students because the statute explicitly states that it applies only to students “not already enrolled.” However, the statute explicitly functions to limit available options for students by preventing the enrollment of new GI Bill students when a school exceeds the 85 percent threshold.

Furthermore, VA will not speculate on the number of choices that will be available after these changes. Some schools with a significant population of students receiving institutional aid may end up exceeding the 85/15 threshold. In those cases, the school has the option to apply for an 85/15 waiver as provided in 38 U.S.C. 3680A(d) and 38 CFR 21.4201. In addition, a program suspended for violating the 85/15 rule retains all its current students. Only future enrollments are potentially affected. Furthermore, Public Law 117-174, discussed in the Ensuring the Best Schools for Veterans Act of 2022 section of this preamble, exempts a large portion of training facilities from the 85/15 requirements.

VA makes no changes to this rule based on these comments.

A few commentors were concerned that the removal of the fourth exception category from being considered supported (the exception for institutional aid) would negatively impact students eligible for grants provided by Federal programs, such as Federal Work Study (FWS) (34 CFR parts 673 and 675), the Federal Supplemental Educational Opportunity Grants (FSEOG) (34 CFR part 676), and the Workforce Innovation and Opportunity Act (WIOA) (Pub. L. 113-128). FWS and FSEOG are Federal grant programs that require the institution to contribute a proportion of the funds paid to the recipient, meaning that when the fourth exception category is removed, such grant recipients would be considered in receipt of institutional aid and therefore counted on the “supported” side of the 85/15 calculation. The commenter opined that this provision would discourage training institutions from participating in these federally funded programs, which would adversely affect both students and the training institution.

VA acknowledges the validity of these comments and recognizes the importance of other Federal programs that benefit students and schools alike; the FWS program provides a source of part-time income for undergraduate and graduate students with financial need, and the FSEOG program, a Title IV campus-based program, provides grants to eligible students who demonstrate exceptional financial need and encourages training institutions to provide grants to low-income undergraduate students.

The WIOA was enacted in July 2014 “to bring about increased coordination among Federal workforce development and related programs . . . [and] to provide a combination of education and training services to prepare individuals for work and to help them improve their prospects in the labor market.” Congressional Research Service, The Workforce Innovation and Opportunity Act and the One-Stop Delivery System (Sept. 26, 2022), available at https://crsreports.congress.gov/product/pdf/R/R44252. Titles I and III of the WIOA are administered by the Department of Labor's Employment and Training Administration (ETA), and Titles II and IV of the WIOA are administered by ED. The annual Congressional appropriation for these programs is a formulaic allotment to states administered by ETA and ED who, in turn, distribute the funding to schools per the WIOA program requirements. Importantly, no grants are awarded directly to individuals, and there are no “matching” requirements for the states or the recipient training institution.

Even though making changes based on these comments will not impact the scope of this rulemaking, VA understands the confusion to stakeholders resulting from the proposed removal of language previously included in the third exception category (“Students in receipt of any Federal aid (other than Department of Veterans Affairs benefits).”). VA will continue to consider Federal aid (other than VA benefits) as distinct from “institutional aid.” VA considers Federal aid to include state and municipal funds, as well as institutional matching funds pursuant to participation in such Federal, state, or municipal grant programs. In this final rule, VA is adding regulatory text clarifying that “institutional aid” does not include Federal, state, or municipal grant funding, nor does it include matching funds provided by the educational institution pursuant to participation in such Federal, state, or municipal grant programs. As such, grants to students under WIOA and other similar programs mentioned by the commentors will be counted as “non-supported,” barring receipt of other prohibited funding.

This categorization of other Federal funding is being informed by similar statutory language concerning institutional aid found in the Post-9/11 GI Bill and at 38 U.S.C. 3313(c)(1)(A)(II). These provisions refer to relevant financial assistance provided by the educational institution to the student as including any scholarship, aid, waiver, or assistance, but do not include loans and funds provided under section 401(b) of the Higher Education Act of 1965 or financial assistance from a third party. VA believes the additional language concerning “institutional aid” is consistent with the concepts embodied by Congress in section 3313.

Moreover, while students in receipt of Federal financial aid count on the “non-supported” side of the 85/15 ratio, VA reiterates that pursuant to Public Law 117-174, many, if not most, accredited schools are likely to be exempt from the 85/15 reporting requirements altogether.

Several commenters indicated that this rulemaking would impose a hardship on low-income students who rely on financial aid to attend an educational institution. Specifically, those commenting expressed the following concerns for low-income students who need scholarships and other financial assistance or aid to pay tuition and fees: (1) institutions will be forced to decrease the amount of financial assistance provided to low-income students to comply with the 85/15 rule which is unfair to these students because their financial assistance is “counted against them” when enrolled at an educational institution, and (2) “under-privileged” and “indigent” students will not have access to educational programs without the use of institutional financial aid. One commentor stated that institutions will be forced to decrease the amount of financial assistance provided to low-income students to stay within the 85/15 rule calculations. Another commentor pointed out that students needing scholarships and financial aid to attend an educational institution should not have their financial assistance counted against them when seeking enrollment at an institution.

Under this rulemaking, supported students are defined as students who have all or part of their tuition, fees or other charges paid for them by the educational institution, or by VA under title 38, U.S.C., or under title 10, U.S.C. As such, only students receiving “VA aid” and “institutional aid” will be counted as supported students. Per statute, when a school chooses to grant institutional aid to a student, the student must be counted as supported, which is the exact intent of the law. Hence, if the school chooses to go over the 85 percent threshold in a specific program of education, future GI Bill students will be impacted. Those students receiving Federal financial aid other than from VA or the educational institution will remain counted as non-supported students for the 85/15 calculations. As a result, there will be no impact to students who are in receipt of non-VA Federal aid such as need-based grants, Federal direct subsidized or non-subsidized loans, or non-institutional financial aid such as third-party loans or scholarships. Those categories of students already are considered non-supported students in 85/15 calculations and will remain on the 15 percent side of the ratio calculation.

Any schools with a significant population of disadvantaged students who receive institutional aid, which might result in the educational institution violating the 85 percent limitation of “supported students” under this rulemaking, may apply for a waiver, which, as a result of this rulemaking, will be a more straightforward process. Specifically, under the amendments to 38 CFR 21.4201(h), VA may grant a waiver of the 85 percent limitation when favorable consideration is made on the educational institution's performance relative to the criteria of “availability of comparable alternative educational facilities effectively open to veterans in the vicinity of the school requesting a waiver” and “the general effectiveness of the school's program in providing educational and employment opportunities to the veteran population it serves.” Whereas there currently are four criteria that must be addressed in order to obtain this waiver, this final rule reduces the number of criteria that must be addressed.

Several comments expressed concern that by removing the third category (“students in receipt of any Federal Aid (other than VA benefits)”) from VA's current regulatory definition of “non-supported” students at section 21.4201(e)(2), this rule would negatively impact two-year institutions that serve low-income or underserved populations that need Federal financial aid to attend school. One commenter stated that this change would force schools to choose between the underprivileged and Veteran populations. Another commentor was concerned that programs such as the WIOA would now be counted on the supported side of the calculation because of the removal of the third category. The commenter stated that many programs attractive to WIOA beneficiaries would also be attractive to Veterans, and therefore may cause the schools to lose prospective students.

As stated above, students receiving Federal financial aid and/or aid from WIOA or similar Federal programs will be not considered “supported” for the 85/15 calculations. As previously stated, supported students are only those students who are having all or part of their tuition, fees or other charges paid for them by the educational institution, or by VA under title 38, U.S.C., or under title 10, U.S.C. According to the PNPI, in the AY 2015-16, only 5.1 percent of students enrolled at minority-serving institutions (MSI) were Veterans. 3 Additionally, in 2020, the Department of Health and Human Services published a list of MSIs that shows the majority are public institutions. 4

Furthermore, Public Law 117-174, discussed in the Ensuring the Best Schools for Veterans Act of 2022 section of this preamble, exempts a large portion of training facilities from the 85/15 requirements.

One commenter stated that counting students receiving institutional aid as “supported” would discourage schools from offering funds to lower income students or risk having Veteran students locked out of the programs they are interested in.

In response, VA notes students receiving institutional aid have been classified by statute as “supported” since the inception of the statute creating the 85/15 rule. The 85 percent rule was enacted in 1952 to combat predatory school abuses found to occur following the implementation of the Servicemen's Readjustment Act of 1944. The statutory authority for the 85/15 rule currently resides in 38 U.S.C. 3680A, where it was added by Public Law 102-568, the “Veterans Benefits Act of 1992.” VA has no authority to remove “students receiving institutional aid” from being counted as “supported”; only Congress does.

Some commenters expressed concerns that the changes to the 85/15 calculations would negatively impact institutional revenue by requiring extensive and possibly duplicative manhours from SCOs (in addition to VA employees) when computing the 85/15 calculations and the 35 percent exemptions.

VA disagrees with this statement. To the extent the commenters' concern is having to revise calculations for prior years, VA notes that 85/15 calculations are done point forward. Calculations that have already been reported for completed or in-progress terms need not be recalculated. To the extent the commenters are concerned about duplication of effort, VA notes this rulemaking has been designed to minimize burdens on both schools and the government while still accomplishing the objective of strengthening the 85/15 rule. By removing the exceptions, the calculation process will be streamlined and more straightforward, enabling SCOs and VA employees to calculate and review easily. Finally, the NPRM did not address the 35 percent exemption, and this rulemaking does not make any changes to the portions of the regulation that address this rule.

Additionally, Public Law 117-174, discussed in the Ensuring the Best Schools for Veterans Act of 2022 section of this preamble, exempts a large portion of training facilities from the 85/15 requirements. As one commenter noted, “virtually all public and non-profit colleges and universities qualify for this exemption: they have veteran populations below 35 percent—typically well below that threshold and often in the single digits—and the majority of their programs are typically approved under section 3672 or 3675.”

Furthermore, according to the PNPI, in 2021, only 6.4 percent of the U.S. population aged 18 or over were Veterans of the U.S. military. For the AY 2015-2016, only 4.9 percent of undergraduates were Veterans. At for-profit institutions during the same period, this figure was slightly higher at 9.2 percent; however, this percentage is still well below the 35 percent mark established by statute. 5 This means that a large portion of those schools previously reporting 85/15 ratios will not be impacted by this rulemaking, as they will be exempt from reporting.

VA makes no changes to the rule based on these comments.

Many commenters opposed VA's 85/15 rule, due to the administrative burden it poses on a school's VA Certifying Official(s). However, one commenter provided a counterpoint, stating that “the removal of these four exemptions will provide clarity and efficiency to the certification process, reducing the workload of administrators and minimizing categorization mistakes.”

VA acknowledges the administrative burden placed on schools that are required to submit 85/15 calculations. However, this rulemaking is not increasing the current burden of having to report 85/15 calculations. Furthermore, the removal of all four current exceptions to the “non-supported” side of the 85/15 ratio simplifies the calculation of the 85/15 ratio and clarifies requirements for schools, thereby making it easier for schools to remain in compliance. In theory, this should lighten the existing administrative burden. Also, the administrative burden of having to submit 85/15 calculations will be reduced due to the implementation of “Ensuring the Best Schools for Veterans Act of 2022,” since this law exempts most accredited schools from 85/15 requirements if their GI Bill student enrollment is lower than 35 percent of the total student population.

VA makes no changes to the rule based on these comments.

There were several comments concerning the amendments to 85/15 waiver criteria. One commenter disagreed with the retention of the criterion in 38 CFR 21.4201(h)(1) and the elimination of the waiver criterion in paragraph (3), stating that for paragraph (1), they believed that the unavailability of another similar program in the vicinity of a non-compliant program would not be an indicator of a program's quality or outcome. This commenter stated that the criterion in paragraph (3) should be retained and its language revised to refer to the “past performance” of an institution, rather than to past compliance. The commenter further stated that in the adjudication of waiver requests, the consideration of an institution's past performance would protect students from predatory schools.

VA disagrees with the commenter's recommendations. VA maintains that the criterion in paragraph (1) (“the availability of comparable schools open to Veterans in the vicinity of the school requesting a waiver”) is a valid and quantifiable criterion to evaluate whether an institution should be granted a waiver. The availability of comparable schools nearby also provides effective market validation of tuition costs because this factor compares the cost-effectiveness of programs at comparable schools.

As to the commenter's suggestion to keep the criterion in paragraph (3) but amend the language to state “past performance” instead of the past compliance of an institution, VA believes that making this distinction is not useful or logical. VA and/or SAAs often learn of past performance issues through their compliance actions. In some cases, non-compliance with VA law or policy leads to the suspension or withdrawal of program approval, giving a clear indication of a past performance issue. Further, “performance” compliance or lack thereof is always documented and is a clear measure of past performance. Regardless, VA concludes that retaining paragraph (3) with either the existing or suggested revision is not necessary altogether since the revision to the criterion in 38 CFR 21.4201(h)(4) (“general effectiveness of the school's program in providing educational and employment opportunities to the Veteran population it serves”) adds the factor of an educational institution's participation in and compliance with the Principles of Excellence program established by Executive Order 13607. This added factor to the paragraph (4) criterion will provide comprehensive performance indicators to evaluate an educational institution's general effectiveness and protect students from predatory schools while using Federal education benefits.

Another commenter objected to the revision of the list of factors to be considered in the “general effectiveness of the school's program” criterion in 38 CFR 21.4201(h)(4), stating that the current factors are required to comply with Principles of Excellence and, as such, should remain in the criteria considered in the 85/15 waiver decision process. The commenter also opposed maintaining the existing graduation rate factor in paragraph (4), stating that this factor may not accurately measure the success of student outcomes since there are instances of students attending, but not graduating from, community college because they attended the community college only to prepare for entry into a university.

VA disagrees with these comments. The current list of factors contained in 38 CFR 21.4201(h)(4), including the “ratio of educational and general expenditures to full-time equivalency enrollment,” largely is not useful when deciding on a waiver and should be revised. As stated in the rulemaking, the current graduation rate factor will be retained and the list expanded to include other factors such as graduate employment, graduate salary, gainful employment, student complaints, and industry endorsements, as these factors are strong and logical indicators of an educational institution's general effectiveness.

As to the commenter's opposition to retaining the existing graduation rate factor, this factor is still both relevant and applicable to most waiver request determinations. Further, this amendment expands the current list of factors that may be considered to include not only graduate employment but graduate salary, gainful employment, student complaints, and industry endorsements. Additionally, under this rulemaking, VA will have authority to weigh other unlisted factors on a case-by-case basis. Thus, there are ample metrics provided by this rulemaking to minimize the significance of the number of students who transfer to, and then graduate from, another educational institution.

Another commenter stated that a school seeking a waiver would be detrimental to Veterans due to the “additional amount of time” expended to seek a waiver. This commenter indicated that a student's program would be suspended pending the waiver determination and that Veterans would be unable to enroll or attend classes in the affected programs.

VA does not agree with this statement since the rulemaking simplifies the waiver application process by decreasing the number of waiver criteria. Therefore, the process of waiver application will be simplified for the educational training institute and for VA to adjudicate. Additionally, as previously stated in this preamble, with the enactment of Public Law 117-174, it is likely that fewer educational training institutes will be seeking waivers, as many are now exempt from tracking the 85/15 ratio.

VA makes no changes to the rule based on these comments.

Executive Order 12866 (Regulatory Planning and Review) directs agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 14094 (Executive order on Modernizing Regulatory Review) supplements and reaffirms the principles, structures, and definitions governing contemporary regulatory review established in Executive Order 12866 of September 30, 1993 (Regulatory Planning and Review), and Executive Order 13563 of January 18, 2011 (Improving Regulation and Regulatory Review). The Office of Information and Regulatory Affairs has determined that this rulemaking is a significant regulatory action under Executive Order 12866, Section 3(f)(1), as amended by Executive Order 14094. The Regulatory Impact Analysis associated with this rulemaking can be found as a supporting document at www.regulations.gov.

The Secretary hereby certifies that 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). Notwithstanding data collection limitations regarding the number of schools that are classified as small entities, VA's certification is based on the fact that students will continue to provide revenue to schools regardless of whether they are classified as supported or non-supported. Should a school already at or near the statutory 85/15 ratio limit find that a reclassification of students from “non-supported” to “supported” will alter its ratio to the point where it will fall out of compliance with the 85/15 rule, the school can recruit additional non-supported students to restore that ratio. While needing to recruit more non-supported students is an effect on schools, it does not qualify as a significant economic impact. Therefore, pursuant to 5 U.S.C. 605(b), the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply. Nonetheless, VA acknowledges that the provisions in this rulemaking may create some uncertainty and reactive behavior from both Veteran students and personnel within institutions of higher learning.

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.

Although this final rule contains collections of information under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521), there are no provisions associated with this rulemaking constituting any new collection of information or any revisions to the existing collections of information. The collections of information for 38 CFR 21.4201 are currently approved by the Office of Management and Budget (OMB) and have been assigned OMB control numbers 2900-0896 and 2900-0897.

The Assistance Listing numbers and titles for the programs affected by this document are 64.027, Post-9/11 Veterans Educational Assistance; 64.028, Post-9/11 Veterans Educational Assistance; 64.032, Montgomery GI Bill Selected Reserve; Reserve Educational Assistance Program; 64.117, Survivors and Dependents Educational Assistance; 64.120, Post-Vietnam Era Veterans' Educational Assistance; and 64.124, All-Volunteer Force Educational Assistance.

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 satisfying the criteria under 5 U.S.C. 804(2).

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

For the reasons stated in the preamble, the Department of Veterans Affairs amends 38 CFR part 21 as set forth below:

This is a summary of the Commission's Report and Order, PS Docket No. 23-5; PS Docket No. 15-80; WC Docket No. 18-336; FCC 23-57, adopted July 20, 2023, and released July 21, 2023. The full text of this document is available by downloading the text from the Commission's website at: https://docs.fcc.gov/public/attachments/FCC-23-57A1.pdf. When the FCC Headquarters reopens to the public, the full text of this document will also be available for public inspection and copying during regular business hours in the FCC Reference Center, 45 L Street NE, Washington, DC 20554. To request this document in accessible formats for people with disabilities ( e.g., Braille, large print, electronica files, audio format, etc.) or to request reasonable accommodations ( e.g., accessible format documents, sign language interpreters, CART, etc.), send an email to FCC504@fcc.gov or call the FCC's Consumer and Government Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

The Commission has determined, and the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget, concurs, that this rule is non-major under the Congressional Review Act, 5 U.S.C. 804(2). The Commission will send a copy of the Order to Congress and the Government Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).

1. In the Report and Order, the Commission requires cable, satellite, wireless, wireline, interconnected VoIP providers (originating service providers), and a new category of “covered 988 service providers” to report outages that potentially affect the 988 Lifeline to the Commission's Network Outage Reporting System (NORS), similar to the Commission's existing rules that require the reporting of outages that potentially affect 911. The Report and Order defines “outages that potentially affect a 988 special facility” as events that result in the loss of the ability of the 988 Lifeline to receive, process, or forward calls, potentially affecting at least 900,000 user-minutes and lasting at least 30 minutes duration.

2. The Report and Order also requires that these providers provide notice to the Substance Abuse and Mental Health Services Administration (SAMHSA), the Department of Veterans Affairs (the VA), and the 988 Lifeline administrator when an outage that potentially affects a 988 special facility occurs. For outages lasting longer than 2 hours, the providers would follow-up with subsequent notifications of material information as soon as possible after discovery of the new material information, and continue providing additional material information until the outage is completely repaired and service is fully restored. These service providers would also be required to maintain up to date contact information for those individuals identified by SAMHSA, the VA, and the 988 Lifeline administrator to receive outage notifications.

3. In the 988 Outage notice of proposed rulemaking (NPRM), 1 the Commission proposed to require entities that provide the 988 Lifeline with capabilities such as the ability to receive, process, or forward calls to report outages that potentially affect the 988 special facilities to the Commission's NORS. The Report and Order adopts this proposal, which is overwhelmingly supported by commenters. The Commission believes this outage reporting requirement will both improve the resiliency of the 988 Lifeline system, and through the Commission's NORS information sharing rules, ensure that SAMHSA, the VA, and the Lifeline administrator have timely outage information so they can provide the public with alternative ways to access the Lifeline. The Commission agrees with the Boulder Regional Emergency Telephone Service Authority that requiring the reporting of 988 outages will enable the tracking of outage trends, the identification of best practices to help preemptively address the common causes of outages, and the ability to anticipate and plan for future outages. The Commission also agrees with Mental Health America that in helping promote timely access to the 988 Lifeline, these requirements will promote equity for at-risk populations.

4. The Commission observes that a person in suicidal crisis or emotional distress who cannot successfully reach a crisis center due to an outage continues to be at risk, regardless of whether the outage occurs before or after a call reaches the 988 Lifeline. This includes outages that prevent calls from being routed to the intended local crisis center or the Veterans Crisis Line. The Commission agrees with commenters that it is appropriate to require covered 988 service providers to report outages in NORS because the services they offer, which ensure that calls are routed to the correct destination after they reach the 988 Lifeline, are essential to the Lifeline's availability. Vibrant, the 988 Lifeline administrator, has indicated that it can use outage information to quickly update routing tables used by covered 988 service providers in order to avoid routing calls to crisis centers that are experiencing an outage. Because this outage information would be used to increase the availability and resiliency of 988 services, the Commission therefore disagrees with CX360 that it is not necessary for the Commission to adopt rules to provide the Commission and the parties responsible for operation of the 988 Lifeline with timely and actionable information about outages that occur after those communications reach the Lifeline. While CX360 argues that “SAMHSA and the 988 Lifeline Administrator already are capable of operating the 988 Lifeline effectively” without such reporting, the Commission notes that SAMHSA and Vibrant both support the reporting requirement. The Commission also rejects CX360's argument that reporting requirements are not necessary because SAMHSA and the VA already have visibility into outages that occur after calls reach the 988 Lifeline. Because CX360 offers no supporting details as to what information SAMHSA and the VA are receiving and whether its substance and timing is comparable to the requirements adopted in the Report and Order, the Commission is not persuaded that this visibility, if it exists, undercuts the justification for the rules adopted in the Report and Order.

5. The Report and Order defines “covered 988 service providers” as those providers that provide the 988 Lifeline with capabilities such as the ability to receive, process, or forward calls. See Ensuring the Reliability and Resiliency of the 988 Suicide &Crisis Lifeline; Amendments to Part 4 of the Commission's Rules Concerning Disruptions to Communications; Implementation of the National Suicide Hotline Improvement Act of 2018, PS Docket Nos. 23-5 and 15-80, WC Docket No. 18-336, at 9, paragraph 15, Notice of Proposed Rulemaking (NPRM), FCC 23-7 (Jan. 27, 2023), 88 FR 20790 (Apr. 7, 2023) (988 Outage NPRM) (proposing to define “covered 988 service providers” as those providers that provide the 988 Lifeline with capabilities such as the ability to receive, process, or forward calls). The Commission responds to commenters that question the scope of the new rules by clarifying that, consistent with longstanding practice in the 911 context, the new paragraph (f) of § 4.5 does require outage reporting from those entities that provide a communications network or service that facilitates the receipt, processing, or forwarding of the call, including from the 988 Lifeline to the local 988 crisis center. See New Part 4 of the Commission's Rules Concerning Disruptions to Communications, Report and Order, 19 FCC Rcd 16830, 16873-76, paragraphs 76 through 81 (2004), 69 FR 70316 (Dec. 3, 2004). The Commission finds that the scope of this definition is appropriately limited in that it covers only those providers that are essential to the capabilities of the 988 Lifeline. The Commission agrees with SAMHSA that “covered 988 service providers” should not include 988 crisis centers themselves nor the Veterans Crisis Line. Crisis centers do not receive, process, or forward calls and lack the expertise and access to information that would be necessary to make such reports. In addition, a requirement for crisis centers to make such reports would place significant additional burdens on them during outages, which would run contrary to the goals of this proceeding. The Commission also finds that covered 988 service providers should not include originating service providers that originate 988 calls and deliver calls to the 988 Lifeline but otherwise do not provide services for the Lifeline. Commenters point out that originating service providers do not generally provide the 988 Lifeline with capabilities such as receiving, processing, or forwarding calls, while the service providers that do offer these capabilities will likely do so through direct contractual arrangements. The Commission agrees with USTelecom that “defining ‘covered service provider’ in this way is consistent with the Commission's definition in the 911 context, and keeping definitions of key terms consistent across these public safety contexts will prevent confusion and facilitate regulatory certainty.” Finally, the Commission agrees with Voice on the Net Coalition that covered 988 service providers should not include providers of capabilities that are provided directly to local crisis centers, as those are not services that are provided directly to the 988 Lifeline.

6. Although the Commission is excluding them from the definition of covered 988 service providers, the Commission also finds that originating service providers are critical in providing 988 service and thus require cable, satellite, wireless, wireline, and interconnected VoIP providers to report in NORS outages that potentially affect the 988 special facilities. The Commission agrees with Mental Health America that these originating service providers, like covered 988 service providers, “have a role to play in ensuring that people get their responses when they need crisis counseling,” and agree with Vibrant that “having the same requirements for covered service providers and OSPs [originating service providers] ensures the delivery of timely, actionable information while also reducing the burden of reporting by streamlining requirements.” The Commission also agrees with the Washington State Department of Health and Health Care Authority that reporting requirements “should not be different for originating service providers that deliver calls to the 988 Lifeline in the first instance versus the covered 988 service provider that handles the call thereafter.” As the Commission states in the Report and Order, a person in suicidal crisis or emotional distress who cannot successfully reach a crisis center due to an outage continues to be at risk, regardless of whether the outage occurs before or after the call reaches the 988 Lifeline. For that reason, the reporting of outages that occur in originating service providers' networks are essential to improving the resiliency of the 988 Lifeline and ensure that SAMHSA, the VA, and the Lifeline administrator have timely outage information so they can provide the public with alternative ways to access the Lifeline. The Commission also finds find, consistent with the views of the National Alliance on Mental Illness, that “having more sources of data regarding outages will enhance the ability of the FCC and the 988 administrator to identify what is needed to create a more reliable network.”

7. The Commission disagrees with those commenters that argue that it is premature for the Commission to consider the adoption of 988 outage reporting requirements. The record reflects the serious impact of the December 2022 covered 988 service provider outage, and nothing in that record indicates that such an outage could not happen again, or that originating service provider outages do not affect the delivery of 988 calls. The Commission also disagrees with Southern Linc, which argues that originating service providers should not be required to report 988 outages because they do not have visibility into the delivery of 988 communications after those communications leave their networks. Originating service providers nonetheless have visibility into whether 988 calls are disrupted due to outages in their own network or the networks of third parties with which they contract for service before being delivered to Lifeline. See Amendments to Part 4 of the Commission's Rules Concerning Disruptions to Communications, Improving 911 Reliability, New Part 4 of the Commission's Rules Concerning Disruptions to Communications, PS Docket Nos. 15-80, 13-75, 04-35, Second Report and Order, FCC 22-88 at 7, paragraph 20 (Nov. 18, 2022), 88 FR 9756 (March 17, 2023) (explaining that reliance upon a third-party service provider to manage, route, or otherwise contribute to 911 call processing does not relieve a service provider of its obligations—even if the discovery is first made by the third party). The Commission therefore believes that originating service providers should be required to report those outages for the reasons explained above.

8. The record informs the Commission that originating service providers currently lack the capability to distinguish outages that prevent the completion of a 988 call from outages on their network that prevent the completion of other calls. For the purposes of the rules the Report and Order adopts, this is immaterial because outages that prevent the completion of all calls are necessarily outages that potentially affect 988 special facilities. The Commission finds that reports about service-wide outages, like reports that are specific to 988 Lifeline outages, provide insight into 988's reliability and can provide information to SAMHSA, the VA, and the Lifeline administrator that would allow them to effectively respond to outages ( e.g., notify the public of alternate ways to contact the 988 Lifeline). The Commission also believes that this approach acknowledges the current capabilities of existing networks, gives service providers flexibility as to how they can satisfy the requirements, and potentially reduces compliance costs by leveraging providers' existing technical capabilities and systems. The Commission notes that originating service providers are already required to report voice service outages in NORS, regardless of a call's destination. As a consequence, The Commission finds that providers complying with this existing outage reporting requirement will only need to take nominal action to report voice telephony outages that potentially affect the 988 Lifeline to the Commission. As recommended by the Alliance for Telecommunications Industry Solutions (ATIS) and NCTA—The Internet & Television Association (NCTA), the Commission will add a checkbox to NORS so that reporting providers can clearly indicate whether a reported outage potentially affects a 988 special facility. The Commission believes this field will improve the ability of the Commission and the agencies with which it shares NORS data to quickly recognize and more effectively analyze the effects of reported outages.

9. The Report and Order defines “outages that potentially affect a 988 special facility” as events that result in the loss of the ability of the 988 Lifeline to receive, process, or forward calls, potentially affecting at least 900,000 user-minutes and lasting at least 30 minutes duration. The Report and Order notes that “loss of the ability of the 988 Lifeline to receive . . . calls” includes outages in originating service providers' networks that prevent successful transmission of calls to the Lifeline. The majority of commenters support using the same outage reporting thresholds for 988 as those previously adopted for 911 outages. The Commission agrees with USTelecom that “[s]tandardizing the threshold across [988 and 911] will facilitate efficient, timely compliance, and is consistent with the Notice's objective of imposing ‘only minor changes to existing procedures’ by ‘closely align[ing]’ them with rules for 911-related outages.” The Commission acknowledges the concerns of the Veterans Crisis Line, which argues that outages shorter than 30 minutes in duration should be reported because, statistically, as many as three deaths by suicide may occur within 30 minutes. However, the Commission believes that the benefits of awareness and opportunities for action that arise from the reporting of outages must be balanced against the burden of reporting those outages. Based on the record before us, the Commission is unable to determine whether reducing the minimum or user-minute durations of reportable outages would improve upon that balance. At this time, it is unclear to what extent reduced thresholds would increase the number of 988 outage reports received, the extent to which additional reporting would contribute to public safety and the reliability of the 988 Lifeline, and whether those benefits would outweigh the burdens associated with increased reporting. For these reasons, the Commission believes it is sensible to adopt 988 outage reporting requirements that are consistent with existing 911 outage reporting requirements and providers' existing reporting procedures. As noted by Association of Public-Safety Communications Officials International, Inc. (APCO), the Commission has recently directed the Public Safety and Homeland Security Bureau (Bureau) to gather information on the volume of 911 outages that may go unreported under the Commission's existing outage notification thresholds and have sought additional comment on possible alternative outage reporting thresholds. The Commission directs the Bureau to add 988 Lifeline outages to its examination.

10. The Report and Order clarifies, as requested by SAMHSA, that outages that potentially affect the 988 Lifeline include partial service disruptions, as well as outages with a duration of more than 30 minutes. The Commission notes that § 4.5(a) of its rules defines an outage as “a significant degradation in the ability of an end user to establish and maintain a channel of communications as a result of failure or degradation in the performance of a communications provider's network.” For example, any circumstances in which the ability of the 988 Lifeline to receive, process, or forward calls is significantly degraded for at least 30 minutes and potentially affects at least 900,000 user-minutes must be reported in NORS. This includes circumstances in which the degradation lasts longer than 30 minutes and circumstances in which 988 calls are received by a call-taker despite the degradation. The Commission disagrees with USTelecom's view that partial outages and service disruptions should not be subject to 988 outage reporting and notification requirements, which it argues would complicate the outage reporting process and result in over-notification. Because the Commission's existing outage reporting and notification rules already define “outages” to include partial service disruptions, exempting partial service disruptions from 988 reporting and notification requirements would make our rules more complicated, not less complicated. The Commission also finds little evidence in the record supporting the conclusion that the reporting of partial outages would result in too many notifications, particularly since SAMHSA and Vibrant, which are two of the three of the entities who would receive notifications under the rules adopted in the Report and Order, are specifically requesting notifications about partial outages.

11. The Report and Order requires 988 outage reports be filed with the Commission in NORS, consistent with the Commission's current requirements for outage report filing processes and timing. No commenter objected to the use of NORS for this purpose. The Commission agrees with ATIS that “industry is already familiar with NORS and believes that the use of NORS will reduce implementation costs associated with 988 outage reporting and would be significantly less costly and burdensome than the implementation of a new or different reporting system.” The Commission further agree with USTelecom that reporting in NORS “will streamline the reporting process and allow providers to devote maximum attention to addressing the outage itself and getting service back up and running, rather than diverting time and resources to more complex or cumbersome reporting requirements.”

12. The Commission declines to allow alternatives to NORS reporting, such as reporting by email, as requested by CX360. The Commission does not agree that alternatives would reduce administrative burdens on providers. NORS is a well-established system that facilitates the filing of outage reports in a streamlined and uniform manner with all information required by our rules. NORS supports the filing of outage data through Application Program Interfaces (API), which can facilitate the automated filing of outage reports. Submission of outage reports via email would create opportunities for inconsistently styled filings with incomplete or confusing information, which would lead to Commission staff taking up providers' time with numerous calls and questions about their filings. The submission of reports by email would also greatly diminish the Commission's ability to record historic outage data, analyze outage trends, and share outage information with Federal, State, Tribal, and territorial agencies. For these reasons, both efficiency and effectiveness weigh in favor of requiring all outage reports to be filed in NORS.

13. The Report and Order allows direct read-only access to NORS data by SAMHSA and the VA, consistent with our existing NORS outage information sharing procedures. In the 988 Outage NPRM, the Commission stated its belief that improving situational awareness of significant network outage issues affecting 988 Lifeline services would not only provide the Commission with critical insight into the availability and reliability of a vital public health service, but would also provide that insight to the other Federal, State, Tribal, and territorial agencies with whom NORS data is shared. The Commission agrees with SAMHSA that having access to outage reports and related analysis on network reliability will better enable these stakeholders to prepare and respond to network disruptions and better ensure the 988 Lifeline's availability. The Commission also agrees with the Washington State Department of Health and Health Care Authority that these 988 stakeholders would benefit from having access to outage reports that indicate whether 988 calls affected by an outage are being rerouted to other crisis centers. The Commission further agrees with the Boulder Regional Emergency Telephone Service Authority (BRETSA) that improving the availability of information about 988 network reliability would empower 988 stakeholders to take additional steps to make the 988 Lifeline even more reliable. For these reasons, the Report and Order clarifies that the Commission considers the lifesaving services offered by the 988 Lifeline to be emergency management and first responder support functions. The Report and Order notes that the national suicide prevention mental health crisis hotline system operates through the National Suicide Prevention Lifeline maintained by the Assistant Secretary for Mental Health and Substance Use, section 520E-3 of the Public Health Service Act, National Suicide Prevention Lifeline Program, 42 U.S.C. 290bb-36c, and through the Veterans Crisis Line maintained by the Secretary of Veterans Affairs under the Comprehensive Program for Suicide Prevention Among Veterans and Members of the Reserve Components of the Armed Forces, 38 U.S.C. 1720F(h). See also National Suicide Hotline Designation Act of 2020 (Congress deemed “life-saving resources” such as crisis lines “essential” and recognized the need for a 3-digit phone number for such services to be readily available in emergency situations.). See NORS/Disaster Information Reporting System (DIRS) Information Sharing Report and Order (R&O), 36 FCC Rcd 6136 at 6146-47, paragraphs 32 through 39 (2021), 86 FR 22796 (April 29, 2021) (describing the “need to know” requirement for eligibility). Accordingly, in order for SAMHSA and the VA to mitigate the impacts service outages may have on access to the 988 Lifeline and VA Crisis Line, and ensure these services remain available to support the safety of the general public seeking crisis support and to prevent suicide among veterans, the Commission finds that both SAMHSA and the VA have a “need to know” and are eligible to apply for direct access to the Commission's outage reports. While the 988 Lifeline administrator is not itself eligible for direct access to these reports because it is not a government agency, the Commission observes that the Commission's outage information sharing rules would allow SAMHSA and the VA to share information with them about specific outages, subject to certain confidentiality requirements and other safeguards.

14. The Report and Order requires covered 988 service providers to directly notify 988 special facilities about outages that potentially affect those facilities. Commenters generally support the adoption of such a requirement. The Commission agrees with USTelecom that this requirement “strike[s] the right balance of getting relevant, actionable information to the proposed 988 special facilities” that will allow them to take steps to maintain the public's access to crisis intervention services “without overloading them.” The Commission agrees with BRETSA that 988 outage notifications can help provide information that will allow 988 special facilities to route calls to alternative crisis centers and to help those centers make necessary staffing adjustments. As Vibrant highlights, it can use information about outages in its capacity as the 988 Lifeline administrator to quickly update routing tables to avoid routing calls to crisis centers that are experiencing an outage. Notifications would also allow 988 callers to receive assistance faster, as they would help ensure that those individuals timely connect to a crisis counselor by reducing the amount of time they would have to wait for assistance as a result of having calls fail to be received by a crisis center. The 988 Lifeline administrator is also able to “effectively and quickly inform all centers in the network of an outage that may impact service and lead to an increase in volume for centers in the areas that are not impacted by the outage. This insight allows time for those unaffected centers to quickly scale to the needed capacity in order to handle the anticipated increased volume that needs to be re-routed.” The Commission also continues to believe that timely notice of a 988 Lifeline outage will assist SAMHSA, the VA, and the 988 Lifeline administrator to quickly inform the public of alternative ways of contacting the Lifeline while one type of communication is unavailable, such as texting or using the online chat function if calls are not getting through. The Commission disagrees with CX360, who implies that 988 outage notifications should be handled through contracts between the 988 Lifeline administrator and its service providers rather than by rule. The Commission finds that it is more efficient and better serves the public interest to establish a single, uniform rule for 988 outage notifications that will apply to all service providers with which the Lifeline administrator may contract in the future rather than make the occurrence, frequency, and content of those notifications a repeated subject of negotiation. The Commission further believes that it will not serve the public interest to make 988 outage notifications dependent on the 988 Lifeline administrator's renegotiation of contracts that are in place today, which would have an uncertain result and likely require considerable time to complete. The notification requirements adopted in the Report and Order are similar to the notification requirements the Commission has adopted for covered 911 service providers, which the Commission has found to be effective.

15. The Commission finds that reliance upon a third-party service provider to manage, route, or otherwise contribute to 988 call processing does not relieve providers of the obligation to provide outage notification to 988 special facilities. The Commission agrees with National Emergency Number Association (NENA) that “the fact that a third party service may specialize in supporting outage notifications, and may have a business relationship with a provider, should not change any reporting requirements for the provider.” The Commission disagrees with CX360's view that covered 988 service providers should only be responsible for reporting outages on facilities over which they have direct control. In this regard, “[t]he Commission has long held that licensees and other regulatees are responsible for the acts and omissions of their employees and independent contractors,” and has recognized that “under long established principles of common law, statutory duties are nondelegable.” The Commission notes that this approach mirrors the requirements it has adopted for outages that potentially affect 911 special facilities, which should promote consistency in how notifications are made by service providers.

16. The Report and Order designates SAMHSA, the VA, and the 988 Lifeline administrator as the 988 special facilities that must receive notifications of 988 outages. Commenters agree that it is appropriate for these three entities to receive outage notifications. The Commission agrees with USTelecom that this requirement will “assist these entities, which oversee and administer the 988 Lifeline, in quickly informing the public of alternative ways to contact the 988 Lifeline as needed.” The Commission also notes, as highlighted by SAMHSA, that such an approach to outage notification will allow the 988 Lifeline administrator to identify and inform the appropriate crisis centers about outages, as it will have the most updated routing tables and patterns on any given day.

17. At this time, the Commission finds that 988 special facilities that are required to receive 988 outage notifications should not include the local crisis centers to which some 988 calls are routed. The record establishes that the 988 Lifeline's current approach of routing calls based on the area code associated with the user's device makes effective notification of this type extremely challenging. As commenters explain, many users' mobile devices have an area code that is different from the area code in which they are located, which would mean that outages limited to a specific geographic region could nonetheless potentially affect every single local crisis center across the country. The Commission agrees with those commenters that argue that notifications provided to local crisis centers under these circumstances are likely to be overbroad, too frequent, or not provide information that the local crisis center would be capable of acting on.

18. Based on the record before us, the Commission finds that regardless of the scope of an outage, SAMHSA, the VA, and the 988 Lifeline administrator are in the best position to identify what information about a specific outage may be relevant to local crisis centers (including changes in local crisis center routing) and use existing points of contact to convey that information. As Vibrant explains, crisis centers will be notified about outages by the 988 Lifeline administrator irrespective of contact by a covered 988 service provider or originating service provider. While several commenters support notification of local crisis centers in some or all situations, the record does not offer a convincing explanation of how local crisis centers would be able to effectively act upon 988 outage notifications to ensure that 988 callers receive assistance. The record also does not provide clarity on how any benefits arising from those challenges should be weighed against the challenges to providers arising from the need to maintain updated contact information for those centers. While BRETSA argues that outage notifications could assist local crisis centers in making decisions about appropriate staffing levels, the Commission believes that direct notification by service providers would not supply sufficient information for this purpose because, in addition to the geographic routing challenges discussed above, the notifications would not offer any visibility into any related routing changes made by the 988 Lifeline administrator that would ultimately affect call volume to those centers. BRETSA also argues that notifications can assist local crisis centers with making long-term network reliability decisions, but the Commission observes that outage notifications are intended to support imminent action during outages rather than long-term decision-making.

19. The Commission also requires originating service providers, that is, cable, satellite, wireless, wireline, and interconnected VoIP providers, to notify 988 special facilities about outages that potentially affect those facilities. As discussed above, a person in suicidal crisis or emotional distress that cannot successfully reach a crisis center due to an outage continues to be at risk, regardless of whether the outage occurs before or after the call reaches the 988 Lifeline. For that reason, outage notifications are essential to ensuring that SAMHSA, the VA, and the Lifeline administrator have timely outage information so they effectively respond to outages. The Commission therefore agrees with those commenters that argue that originating service providers should be required to provide notifications of 988 outages.

20. The Commission disagrees with Southern Linc's opinion that the area code-based routing of 988 makes it “highly doubtful that OSPs would be able to provide any actionable outage information to 988 special facilities.” As discussed above, the 988 Lifeline administrator can use outage notifications to update routing tables to avoid routing calls to crisis centers that are themselves experiencing outages, as well as inform crisis centers about increases or decreases of incoming calls so they can appropriately scale capacity. If needed, SAMHSA, the VA, and the 988 Lifeline administrator could also use information about an outage to inform the public of alternative ways of contacting the Lifeline while a means of communication is unavailable. These actions are available regardless of whether an outage occurs within the network of a covered 988 service provider or an originating service provider. The Commission also disagrees with T-Mobile's argument that 988 special facilities should not receive notifications, but should instead obtain outage information from NORS data. NORS data is generally received two hours after the discovery of an outage and would have to be actively checked throughout the day by 988 special facilities to stay aware of outages. The Commission finds that this approach is far less likely to be effective at providing timely information than the direct notifications adopted in the Report and Order, which must be delivered within 30 minutes and are provided directly to the affected special facilities. This approach is also consistent with the existing requirement that originating service providers must notify 911 special facilities, which will help minimize costs, promote efficiency, and avoid confusion among providers.

21. The Commission acknowledges concerns that a 988 outage notification requirement for originating service providers could result in SAMHSA, the VA, and the 988 Lifeline administrator receiving “tens of thousands” of outage notifications annually, which could be overwhelming and could undermine effective outage response. As Verizon notes, hundreds of outages occur on originating service providers' networks every day, and notifications for those outages are split across thousands of public safety answering points (PSAPs) across the country. If every one of those outage notifications were sent to SAMHSA, the VA, and the 988 Lifeline administrator by phone and email daily, then they presumably would need significant, dedicated resources to receive and act on those notifications. However, the record supports the conclusion that 988 special facilities have such resources in place and will be able to handle the volume of notifications. SAMHSA and Vibrant state that despite the high volume, Vibrant has access to continuous monitoring tools and can develop the necessary capabilities to be able to ingest these notifications. The Commission urges service providers to collaborate with 988 special facilities to ensure that 988 notifications are provided in a format that best facilitates rapid analysis and action.

22. The Commission declines to require covered 988 service providers to notify originating service providers about 988 Lifeline outages and decline to require originating service providers to notify covered 988 service providers about 988 Lifeline outages. As some commenters note, covered 988 service providers often compete with originating service providers or provide services to their competitors. As a consequence, a notification requirement would mandate the sharing of competitively sensitive information. The Commission shares this concern, as well as the concern that the risk of sharing sensitive information directly with competitors and other individuals unnecessarily may slow down providers' notification processes or lead to the removal of information from outage reports that might otherwise be beneficial to a 988 special facility. The Commission notes that the Washington State Department of Health and Health Care Authority supports a requirement that originating service providers provide notice to covered 988 service providers of 988 outages as “these notices would provide for increased coordination between the carriers for remedying the outage and coordinating workarounds.” CX360 argues that originating service providers should be required to notify covered 988 service providers about outages because the latter “lack[s] independent insight into the operations on OSPs' networks” and notifications will allow it to “better understand what is happening upstream so it can react quickly and ensure its service is working correctly,” and “troubleshoot any issues without needing to contact a provider earlier in the call path, leading to a more efficient resolution of any problems.” The Commission disagrees, as the Commission finds it unlikely that these actions will help ensure the availability of the 988 Lifeline. If an outage occurs in an originating service provider's network, the Commission does not see how it would be beneficial for a covered 988 service provider to begin “troubleshooting issues” within its own separate, downstream network, nor is it clear how those actions would help resolve the originating provider's outage or otherwise help 988 callers successfully reach the Lifeline. In any event, the Commission believes the potential negative impacts on the effectiveness of outage notifications outweigh these possible benefits.

23. The Commission also declines to require that PSAPs be notified about 988 outages. While some commenters argue that 988 outage notifications would prepare PSAPs for potential call volume increases and give them the necessary situational awareness to handle those calls in an appropriate manner, our rules already require PSAPs to be notified about outages that potentially affect 911 special facilities, including general network outages. In addition, these notifications will not provide PSAPs with situational awareness about any routing decisions made by the 988 Lifeline administrator to address the outage. To the extent that an outage might occur in the network of a covered 988 service provider, it is unclear that the benefit of preparing PSAPs for potential call volume increases related to an outage would outweigh the burden of requiring the provider to maintain contact information and then notify thousands of PSAPs nationwide. Moreover, because call routing for 988 is currently based on area code of the caller, rather than geographic location, the ability to identify the appropriate PSAP for such notice may not be logistically feasible in all instances. The Commission also declines to adopt the approach supported by APCO, which would only require 988 outage notifications be made to those PSAPs that opt-in to receiving them. The Commission believes it would be too administratively burdensome for each service provider to continuously track and update the list of PSAPs across the country that have opted-in to receiving 988 outage notifications, particularly in light of the limited benefits.

24. The Report and Order requires covered 988 service providers and originating service providers to notify 988 special facilities with the same content, by the same means, with the same timing, and with the same frequency as our rules require for 911 outage notifications. Most commenters agree that harmonizing these requirements will have the effect of minimizing the cost and other impacts of the new notification requirements on service providers by allowing them to make notifications by efficiently using existing systems and processes. The Commission further notes that here, as in the 911 context, parties may mutually agree to alternate means of notification.

25. The Commission declines to require certain modifications to these requirements proposed by commenters. The Commission rejects CX360's proposal that it adopt a “safe harbor” or otherwise modify the content of outage notifications to allow providers to merely notify 988 facilities within 30 minutes that “an issue has been identified and is being actively investigated, with additional information to be provided later.” This approach would greatly reduce the amount of actionable information available to 988 special facilities and therefore would not serve as an effective notification. The Commission also declines to require notifications to include contact information for those callers that failed to connect to the 988 Lifeline since the outage began. The Commission agrees with commenters that it is important for those individuals to receive the support they need, but believe more study is needed to determine whether it is technically feasible to require service providers to obtain and share that information as part of the outage notification process, as well as to understand any costs that might be attendant in obtaining and sharing such information. The Commission acknowledges, as CTIA—The Wireless Association (CTIA) asserts, that wireless network equipment affected by an outage often will not be able to identify devices that cannot connect to the network, which could make compliance with such a requirement challenging. While several commenters also argue that the phone numbers of individuals who try, but fail to reach 988 is not currently available to providers, the Commission suspects that it may be technically feasible for providers to develop these capabilities, so it plans to continue to explore the matter.

26. The Commission disagrees with those commenters that argue that a 30-minute timeframe to provide 988 outage notifications is too fast, as well as those that argue that it is too slow. The Commission finds, as it previously found for 911 outage notifications, that a 30-minute timeframe strikes a balance between the need for timely and actionable 988 outage information and the accuracy of that information. The Commission believes the comments of the Veterans Crisis Line, which highlights that statistically as many as three deaths by suicide occur within thirty minutes, and the comments of the Competitive Carriers Association (CCA), which argues that 30-minute notifications may result in rushed analysis and inaccurate reporting, illustrate why a balance must be struck between speed and accuracy. The Commission agrees with those commenters who argue that 30 minutes is the best way to strike that balance.

27. The Commission disagrees with CCA that a 30-minute notification timeframe would be unreasonable and unrealistic, particularly for originating service providers utilizing vendors for 988 solutions. Thirty minutes has already proven to be a realistic timeframe for covered 911 service providers to gather clear and useful information about network outages to include in a notification, even though such providers also frequently contract for services from vendors. The Commission also finds that originating service providers serving fewer customers will have to experience longer outages to reach the threshold required for notification, which effectively provides more time for those providers to investigate the outage. The Commission therefore sees no reason why it would be overly burdensome for originating service providers to provide accurate notifications within a similar timeframe for 988 outages. To the extent that service providers find that their own vendors' coordination failures are causing them to violate the Commission's outage notification requirements the Commission believes that is a matter to be resolved between those parties and does not change the service provider's obligation to comply with the Report and Order's notification requirements.

28. As an alternative to the requirement adopted in the Report and Order, CCA proposes that the Commission adopt at minimum an approach that sets 988 outage notification deadlines based on the time when actual originating service providers are notified about outages by their vendors or underlying providers. This alternative is incompatible with the goal of providing 988 special facilities with timely outage notifications because it would excuse originating service providers from reporting outages that their vendors fail to disclose to them. The Commission believes this approach would disincentivize originating service providers from learning about outages on their vendors' networks, eliminate consistency as to when 988 special facilities can expect to receive outage reports, and delay 988 special facilities' receipt of outage reports, which would in turn delay any actions they may take to ensure the 988 Lifeline's availability. Moreover, the Commission finds it does not serve the public interest to create a means for providers to “contract away” their obligations by allowing the use of a vendor to alleviate a regulatory obligation. As stated above, the Commission has long held that licensees and other regulatees are responsible for the acts and omissions of their contractors, and the Commission declines to adopt an approach to 988 outage notification that would disturb that holding. The findings the Commission makes in the Report and Order are limited to the 988 outage notification requirements made in the order. The Commission reserves judgment on the Petition for Reconsideration filed by CCA regarding the Commission's November 2022 Report and Order, 88 FR 9756 (March 17, 2023), harmonizing 911 existing outage notification requirements. See CCA Petition for Reconsideration , PS Docket Nos. 15-80 and 13-75, ET Docket No. 4-35 (filed Mar. 17, 2023), https://www.fcc.gov/ecfs/search/search-filings/filing/1031746539270. The Commission also rejects CX360's proposal that follow-up notifications not be due until seven to fourteen days after an initial notification is provided, as delaying critical details about an outage for an entire week, which is likely long after the outage has been resolved, clearly does not serve the goals of improving 988 special facilities' awareness and ability to address outages.

29. The Report and Order requires covered 988 service providers and originating service providers to exercise special diligence to maintain accurate, up-to-date contact information for 988 special facilities, just as our rules require for 911 special facilities. “Special diligence” is the diligence expected from a person practicing in a particular field of specialty. The Commission has imposed this higher level of care in circumstances where a failure to take sufficient care can lead to particularly serious public harms. In these circumstances, special diligence would require, for example, actively seeking to confirm the accuracy of contact information and not relying on the absence of a response. Once providers have a 988 special facility contact list in place, special diligence would require them to annually verify the accuracy of their contact list to ensure it is up-to-date. As it has found in the 911 context, the Commission found that for 988 outage reporting that requiring a higher level of care than reaching out to the prior contact is imperative to ensure public safety, and requiring this higher level of care will incentivize providers to ascertain and update such contact information. The Commission also finds that this requirement is significantly less burdensome than the similar requirement pertaining to 911 special facility contact information because the Report and Order only designates three 988 special facilities for which contact information must be maintained. The Commission disagrees with ATIS's view that it would be extremely difficult to apply special diligence to the maintenance of 988 contact information because “there are no subject matter experts practicing in the field of 988 routing or 988 contact information maintenance.” The diligence our rules require is that of a communications provider that, through their experience in offering the services that emergency communications depend on, understands that failure to provide effective notifications about outages could result in harm to life and property. Accordingly, the Commission expects that 988 service providers and originating service providers would take the steps necessary to ensure that the contact information they maintain for 988 special facilities is accurate and effective as the failure to provide effective notice to the appropriate contact could result in harm to life and property.

30. The Commission declines at this time to require covered 988 service providers or originating service providers to file 988 reliability certifications to ensure the network supporting the 988 Lifeline remains resilient and robust. The Commission agrees with ATIS that 988 is different from 911 in structure and organization; therefore the Commission's existing 911 network reliability certification requirements could not easily be applied to 988 reliability. The Commission believes additional study of threats to the 988 Lifeline is necessary to determine what next steps should be taken, if any, to promote reliability. The Commission expects that the 988 outage reporting requirements adopted in the Report and Order will give it additional insight to 988 reliability trends and inform future action.

31. The Commission notes that some commenters made recommendations that they argue would improve the general effectiveness and reliability of the 988 Suicide & Crisis Lifeline. While these recommendations are outside of the scope of the 988 network outage reporting and notification requirements adopted in the Report and Order, the Commission will keep these issues in mind as it continues to support the 988 Lifeline.

32. The Commission determined that the rules adopted in the Report and Order concerning the reporting in NORS of outages that potentially affect 988 special facilities and the notifying of 988 special facilities about outages will result in an industry-wide one-time compliance cost of $56,000 and an annual recurring cost of $1,355,000. The Commission sought comment on cost estimates in the 988 Outage NPRM and received no persuasive objections and only one comment offering an alternative calculation in response, which is addressed in context below.

33. For the reporting of 988 outages in NORS, the Report and Order finds that outages that potentially affect 988 special facilities fall into two categories: outages experienced by the covered 988 service providers that are responsible for providing the 988 Lifeline with the capability to receive, process, or forward 988 calls, and outages experienced by originating service providers that deliver calls to the Lifeline. Consistent with the estimate stated in the 988 Outage NPRM, which no commenter challenged, the Commission assumes that one covered 988 service provider experiences a maximum of one reportable outage per month and estimates an annual compliance cost for that one covered 988 service provider of $1,000. See 988 Outage NPRM at 15, paragraph 37, n.80 (estimating a maximum of two hours total time to submit all required reports at a cost of $43 per hour for a total cost estimate of $1000 ~ $43/hr × 2 hrs × one reportable outage per month × 12 months). The Commission finds that originating service providers already submit outage reports to the Commission related to outages that affect voice telephony, which would be largely or entirely identical to the new reporting requirements, so initial compliance costs would be negligible.

34. With regard to the requirements to maintain updated contact information for 988 special facilities and to notify those facilities about outages that affect them, the Commission estimates that the costs of compliance will also be relatively low when compared to the benefits to the public. It estimates a one-time industry-wide cost of $56,000 to create an e-mail survey to biannually solicit 988 special facility contact information. The Commission does not expect more than incidental costs arising from the creation or updating of outage notification templates, as the 988 outage notification requirements that adopted in the Report and Order share the same content and timing as the 911 outage notification requirements with which service providers already comply. The Commission estimates maximum annually recurring costs of $1,354,000, which consist of $1,326,000 for notifying 988 special facilities of outages that potentially affect them pursuant to the requirements adopted in the Report and Order and $28,000 for soliciting appropriate contact information for outage notification from 988 special facilities. The Commission expects that no costs will be incurred related to identifying the 988 special facilities that could potentially be affected by an outage, as the Commission has required that the same three special facilities (SAMHSA, the VA, and the 988 Lifeline administrator) be notified regardless of the geographic area affected by the outage.

35. The Commission finds that the benefits of the 988 outage reporting and notification requirements adopted in the Report and Order outweigh their associated costs. The Commission recognizes that it is difficult to quantify the value of ensuring the continuity of access to 988 Lifeline services, which includes its capacity to save lives and mitigate and prevent injuries. However, the Commission believes the considerable public safety value of the requirements adopted in the Report and Order as described above will exceed the limited costs of implementation. As discussed by commenters and in the 988 Outage NPRM, the 988 Lifeline directly benefits people in crisis and saves lives. When the 988 Lifeline is interrupted, people's lives are put into jeopardy. In May 2023, the 988 Lifeline answered 235,292 calls, which is an average of over 7,500 answered calls per day. The Commission finds that the outage reporting requirements would improve public safety by providing the Commission and other impacted entities with situational awareness of 988 outages, including the magnitude and causes of those outages, and allow for the identification of network reliability trends that can help identify best practices that could improve network reliability by helping to mitigate future outages. The Report and Order's notice and contact information retention requirements are intended to ensure that when 988 calling is disrupted, parties responsible for the varying aspects of the 988 call pathway notify 988 special facilities, share critical information in a timely and standardized manner, and hasten the timely restoration of 988 Lifeline services. The Commission describes in the Report and Order how even a very small increase in the speed of restoration of access to 988 Lifeline services could provide benefits that outweigh the costs of adopting the requirements.

36. The benefits of reducing suicide via 988 are driven by the staggering societal costs of deaths by suicide. In 2021, there were over 48,000 deaths by suicide in the United States, which, as noted above, averages out to approximately one death every 11 minutes. For every suicide death, there were 3 hospitalizations for suicide attempts, 8 suicide-related emergency department visits, and 38 self-reported suicide attempts. Suicides and suicide attempts annually impose billions of dollars in medical, first-responder, productivity-loss, and lost-quality-of-life costs on society. In addition to lives saved and injuries avoided, time-saving network outage protocols will also alleviate the devastating emotional toll wrought by suicide on victims' families, friends, and communities.

37. Notifying SAMHSA, the VA, and the 988 Lifeline administrator of the disruption of access to 988 Lifeline services will allow these parties to manage the impact of outages on their operations, quickly notify the public of the 988 service outage, and promote alternative ways for people to access 988 Lifeline services during the outage, which may include notifying the public of alternative call numbers, or encouraging people to text to 988 or use the https://988lifeline.org/ link to chat with a crisis management counselor. This, in turn, will enhance the 988 Lifeline's ability to direct scarce resources toward mitigating outages rather than seeking out information as to whether an outage is occurring, the scope of such an outage, or its impact. One of the benefits of implementing short dialing for calls and text messages to the Lifeline was to reduce the burdens on 911 and other emergency services arising from calls related to mental health and suicide. The Commission believes that the rules adopted in the Report and Order will further reduce the burden on 911 and other emergency services by promoting 988 reliability so that 988 calls go through when individuals need 988 service the most.

38. The Commission disagrees with Southern Linc's argument that the rules adopted in the Report and Order place unnecessary regulatory burdens on smaller non-nationwide providers, which they assert will be strained due to the same personnel being responsible for both reporting and responding to outages, as well as complying with other regulatory requirements. As explained above, the Commission finds that the significant public safety benefits arising from the requirements adopted in the Report and Order outweigh their associated burdens, particularly since the cost of these requirements is likely to be relatively low due to commonalities with existing outage reporting requirements. The Commission again notes that the outages experienced by smaller providers with fewer subscribers would generally take longer to meet the required reporting thresholds, which would effectively provide more time to investigate an outage before it is required to be reported. Southern Linc further accuses the Commission of “assuming that all employees of a provider's affiliates—no matter how distant—should be considered ‘available resources’ to support the provider's compliance efforts, regardless of whether the employees of those affiliates have any responsibility to support wireless network operations.” The Commission does not make this assumption. If the Commission were to assume that service providers already had available staff to implement the requirements adopted in the Report and Order, then the costs to service providers would be estimated to be zero. To the contrary, the cost estimates that the Commission makes in the Report and Order are grounded in the additional labor hours and wages needed to comply with the Report and Order's adopted rules.

39. In the 988 Outage NPRM, the Commission sought comment on potential sources of legal authority under titles II and III and section 4(i) of the Communications Act and section 104 of the Twenty-First Century Communications and Video Accessibility Act (CVAA) for Commission action to promote the reliability and resiliency of the 988 Lifeline. The Commission noted that Congress amended section 251 of the Communications Act of 1934 to specify 988 as the universal telephone number for the National Suicide Prevention Lifeline and that the proposed rules were intended to ensure that the Lifeline remains operational in accordance with the policies identified by Congress in that 2020 legislation and that any outages are quickly identified and reported, thus promoting the safety of life and property. The Commission now finds that section 4 and section 251 provide ample authority for the reporting and notice obligations adopted in the Report and Order.

40. Title II of the Communications Act gives the Commission clear authority over service providers, including covered 988 service providers, to the extent that they provide interstate common carrier service. The statute provides that “practices” for and in connection with interstate common carrier services must be “just and reasonable,” and that a common carrier must “provide itself with adequate facilities for the expeditious and efficient performance of its service as a common carrier.” The Commission is also authorized to “inquire into the management of the business of all carriers and obtain from them full and complete information necessary to enable the Commission to perform the duties and carry out the objects for which it was created.”

41. The Commission further notes that the Communications Act directs that “[f]or the purpose of obtaining maximum effectiveness from the use of radio and wire communications in connection with safety of life and property,” the Commission “shall investigate and study all phases of the problem and the best methods of obtaining the cooperation and coordination of these systems.” Both originating service providers and covered 988 service providers play critical roles in ensuring the cooperation and coordination of the 988 system, and the Commission has previously relied on section 4(n) as providing authority to require reporting of interconnected VoIP outages, and to require emergency alerting plans to allow the Commission and other stakeholders “to more easily review and identify gaps” in emergency alerting architecture, “detect problems, and take measures to address these shortcomings.” By requiring reporting of outages affecting access to 988 by both originating service providers and covered 988 service providers the Commission is enabling the Commission's ongoing review of sources of disruption to this critical emergency service, which in turn will contribute to greater reliability going forward. The Commission concludes that these sources provide it with sufficient authority for the 988 outage reporting requirements adopted in the Report and Order.

42. Additionally, the Commission finds that imposing outage reporting requirements on covered 988 service providers is reasonably ancillary to our responsibility to ensuring that the 988 Lifeline service operates effectively. To exercise ancillary authority “two conditions [must be] satisfied: (1) the Commission's general jurisdictional grant under Title I [of the Communications Act] covers the regulated subject and (2) the regulations are reasonably ancillary to the Commission's effective performance of its statutorily mandated responsibilities.” The functions at issue here involve communications by wire or radio in that they either take the form of such transmission or involve the use of equipment for purposes of facilitating transmission by wire or radio. The Commission concludes that these reporting requirements are necessary to carry out our responsibility for the proper functioning of the 988 Lifeline service under section 251(e)(4). Obtaining outage information from covered 988 service providers is necessary because only the covered 988 service provider has visibility into outages that occur at the point where the covered 988 service provider processes and forwards the call. Adopting outage reporting and notice requirements for entities that have the ability to receive, process, or forward calls to the 988 Lifeline furthers the Commission's goals to strengthen the 988 Lifeline's reliability and help save the lives of those who may be experiencing a suicidal crisis or mental health-related distress.

43. The Commission disagrees with CX360, a company that contracts with the 988 Lifeline administrator to provide voice and SMS-based services for communications after they reach the 988 Lifeline, that the Commission lacks authority to require the reporting of outages by entities that provide the 988 Lifeline with the capability to receive, process, or forward calls. As outlined above, the Commission clearly has authority to impose these reporting and notice requirements on CX360, on any entities that offer to the public for a fee “transmission between points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received,” and on entities that route calls from the 988 Lifeline to the appropriate crisis center(s), following routing instructions provided by the 988 Lifeline administrator. Even though the responsibilities of an originating service provider may conclude once a call reaches the 988 Lifeline, this does not mean that the services offered by other communications providers within the 988 call path that are necessary to connect the caller to their local crisis center, the Veterans Crisis Line, or other call taker, a service which CX360 states that it provides, cannot be regulated by the Commission.

44. The Commission specifically rejects CX360's argument that entities that “process” calls for the 988 Lifeline cannot be regulated by the Commission. The Commission finds that the processing of 988 calls—that is to say, conducting the necessary technical steps to prepare the call for forwarding to a crisis center or the Veterans Crisis Line and then transmitting those calls to that crisis center—falls within our authority to regulate via the reporting and notice requirements adopted in the Report and Order. To the extent that an entity uses an interactive voice response system to support these capabilities, the Commission acknowledges that such an offering may acquire, store, or process information related to how the call should be routed. But the Commission concludes that it has authority to require outage reporting and notice under the specific circumstances here from entities performing functions like CX360.

45. The Report and Order adopts deadlines for originating service providers to comply with the Report and Order's revisions to § 4.9 as the latest of (1) 30 days after the Commission issues a Public Notice announcing that OMB has completed review of any new information collection requirements associated with the adopted Report and Order; (2) 90 days after the publication of the summary of the Report and Order in the Federal Register , or (3) the date the Commission's updated 911 outage reporting and notification rules go into effect. Consistent with the Commission's proposal in the 988 Outage NPRM, the Commission agrees with Vibrant that the first two elements of this timeline provide sufficient time for compliance, as the Commission finds that the revisions constitute only minor changes to existing notice and reporting requirements for 911 network outages, and it will take a modest amount of time for originating service providers to adjust their processes to satisfy the proposed rules. The Commission also agrees with USTelecom that it is sensible to harmonize the compliance timeline for the rules adopted in the Report and Order with the compliance timeline for the 911 outage notification requirements adopted in November 2022 given the similarities between them.

46. The Commission is persuaded by CX360 that some covered 988 service providers may not have existing NORS filing or outage notification obligations and would need additional time to develop the capabilities and processes necessary to comply with the rules adopted in the Report and Order. Accordingly, the Commission agrees with CX360 that covered 988 service providers should be granted six additional months to come into compliance. The Report and Order adopts deadlines for covered 988 service providers to comply with the Report and Order's rules as the latest of (1) 30 days after the Commission issues a Public Notice announcing that OMB has completed review of any new information collection requirements associated with the adopted Report and Order; (2) nine months after the publication of the summary of the Report and Order in the Federal Register ; or (3) the date the Commission's updated 911 outage reporting and notification rules go into effect.

47. Paperwork Reduction Act of 1995 Analysis. This document requires covered 988 service providers and originating service providers to adopt 988 reporting and notice procedures which represent new and modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. The document will be submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the PRA and, with the exception of the revision to 47 CFR 4.9(e)(1)(iv), will not take effect until approved by OMB. OMB, the general public, and other Federal agencies will be invited to comment on the new or modified information collection requirements contain in this proceeding. This document will be submitted to OMB for review under section 3507(d) of the PRA. In addition, the Commission notes that, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission previously sought, but did not receive, specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees. The Commission does not believe that the new or modified information collection requirements adopted in the Report and Order will be unduly burdensome on small businesses.

48. Regulatory Flexibility Act Analysis. The Regulatory Flexibility Act of 1980, as amended (RFA) requires that an agency prepare a regulatory flexibility analysis for notice and comment rulemakings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” As required by the RFA, an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the 988 Outage NPRM adopted January 26, 2023 (88 FR 20790 (Apr. 7, 2023)). The Commission sought written public comment on the proposals in the 988 Outage NPRM, including comment on the IRFA. No comments were filed addressing the IRFA. The Commission prepared a Final Regulatory Flexibility Analysis (FRFA) concerning the potential impact of the rule and policy changes adopted in the Report and Order on small entities. The FRFA is set forth in Appendix B of the Report and Order.

49. Accordingly, it is ordered that, pursuant to the authority contained in sections 1, 4(i), 4(j), 4(n), 201(b), 214, 218, 251(e)(3), 251(e)(4), 301, 303(b), 303(g), 303(r), 307, 309(a), 332, and 403, of the Communications Act of 1934, as amended, and sections 3(b) and 6 of the Wireless Communications and Public Safety Act of 1999, as amended, 47 U.S.C. 151, 154(i), 154(j) 154(n), 201(b), 214, 218, 251(e)(3), 251(e)(4), 301, 303(b), 303(g), 303(r), 307, 309(a), 332, 403, 615, 615a-1, the National Suicide Hotline Improvement Act of 2018, Public Law 115-233, 132 Stat. 2424 (2018), and the National Suicide Hotline Designation Act of 2020, Public Law 116-172 (2020), the Report and Order IS hereby adopted.

50. It is further ordered that the amendments of the Commission's Rules as set forth in Appendix A of the Report and Order are adopted , effective 30 days after publication in the Federal Register , except for the amendments to 47 CFR 4.9. The amendments to 47 CFR 4.9 will not become effective until OMB completes any review that the Public Safety and Homeland Security Bureau determines is required under the Paperwork Reduction Act and the Public Safety and Homeland Security Bureau announces an effective date consistent with section III.E of the Report and Order by subsequent Public Notice.

51. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of the Report and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

52. It is further ordered that the Office of the Managing Director, Performance and Program Management, shall send a copy of the Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A).

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 4 as follows:

On December 9, 2022, at 87 FR 75496, the Commission published a final rule amending 47 CFR 64.6040, effective January 9, 2023, by adding paragraph (c). The addition of paragraph (c) to § 64.6040 (amendatory instruction 11) was delayed indefinitely.

On December 21, 2023, at 88 FR 88257, the Commission announced the effective date of December 21, 2023 (with an implied applicability date of December 21, 2023), for § 64.6040(c) and other amendments in the December 2022 rule. That effective date for § 64.6040(c) in the December 21, 2023 document was established in error, but that error went undetected until the publication of the second effective date announcement on January 3, 2024, which contained a second incorrect effective date (with implied applicability date) of January 9, 2023.

Therefore, the announcement of effective date, published January 3, 2024, at 89 FR 269, is corrected as follows:

In FR Doc. 2023-28765, published in the Federal Register of January 3, 2024 (89 FR 269), on page 269, in the second column, correct the DATES section to read: