The FEHB Program was established in 1960 and is the largest employer-sponsored health insurance program in the United States. There are approximately 8.2 million covered individuals in the FEHB Program. Covered individuals, as defined in 5 CFR 890.101, include employees of the Federal Government, annuitants, members of their families, former spouses, and statutorily eligible groups enumerated in 5 U.S.C. 8901; and tribal employees of tribal employers, pursuant to 25 U.S.C. 1647b. Currently, Postal Service employees, Postal Service annuitants, and their family members are also eligible for health benefits under the FEHB Program pursuant to 39 U.S.C. 1005. Section 101 of the Postal Service Reform Act (PSRA) added new section 8903c to chapter 89 of title 5, United States Code, and directed OPM to establish the PSHB Program within the FEHB Program for Postal Service employees, Postal Service annuitants, and their eligible family members. Under 5 U.S.C. 8903c(c)(3), except as otherwise set forth in 5 U.S.C. 8903c, the provisions of chapter 89 “applicable to health benefits plans offered by carriers under section 8903 or 8903a shall apply to plans offered under the” PSHB Program.

Health benefits plans under the FEHB Program cover a wide range of health services including routine physical exams, primary and specialist doctors' visits, inpatient hospital care, surgery, laboratory and diagnostic tests, prescription drugs, and mental health services. Required benefits are listed in broad categories in the FEHB statute at 5 U.S.C. 8904 and include hospital benefits, surgical benefits, medical care and treatment, and obstetrical benefits, among others. The benefits, coverage, and premium details of each plan in the FEHB Program are negotiated with OPM each year.

OPM administers the FEHB Program in accordance with Title 5 Chapter 89, United States Code and implementing regulations (5 CFR parts 890 and 892 and 48 CFR chapter 16). The authority to modify the effective coverage date for employees with an initial opportunity to enroll is under OPM's authority at 5 U.S.C. 8913 to prescribe regulations necessary to carry out administration of the FEHB Program. Based on agency feedback and OPM's own analysis, which are discussed in more detail in the next section, we are proposing changes to regulations that would allow for coverage to be effective sooner for eligible employees and act as a recruitment and retention tool that positions the Federal Government as a model employer.

OPM proposes to modify its FEHB enrollment regulations regarding the effective date of coverage for employees with an initial opportunity to enroll. An initial opportunity to enroll is the time period in which employees are allowed to elect enrollment in FEHB and may occur in the following circumstances: as a new employee, when an employee changes from an excluded position to a position eligible for FEHB coverage, or a temporary employee who completes one year of service and is eligible to enroll under 5 U.S.C. 8906a. Currently, under 5 CFR 890.301(a), an employee “may elect to enroll or not enroll [in FEHB] within 60 days after becoming eligible” for FEHB coverage. Coverage is effective on the first day of the first pay period that begins after the date the employing office receives an appropriate request to enroll, and that follows a pay period that the employee is in pay status as described in 5 CFR 890.301(b). OPM is proposing to allow newly eligible employees the opportunity to have their FEHB coverage effective at the beginning of the pay period the employee becomes eligible, provided they are in pay status; have an initial opportunity to enroll in FEHB coverage; and have submitted, with their employing office having received, an appropriate request to enroll in FEHB coverage during that first pay period of eligibility. An appropriate request is defined in 5 CFR 890.101(a) as a properly completed health benefits election form, such as Standard Form 2809, or an alternative method acceptable to both the employing office and OPM.

In 5 CFR 890.101, a pay period is defined as “the biweekly pay period established pursuant to section 5504 of title 5, United States Code, for the employees to whom that section applies and the regular pay period for employees not covered by that section.” Across most Federal agencies, the general standard is for two-week pay periods to begin on Sunday and run until Saturday of the following week. Recognizing there may be some variance in agency approaches and seeking to ensure an equitable application of the rule to employees, OPM seeks comments on current business processes to effectuate and document an employee's entry on duty. For example, what is the process if a new employee arrives for orientation on Monday, August 28, 2023, and the start of the pay period is Sunday, August 27, 2023?

Changes proposed in this rulemaking, if finalized, would be required to be applied by the employing office to all employees with an initial opportunity to enroll, not solely to new employees or only on an individual, case-by-case basis. For example, if an employing office receives appropriate requests to enroll from two employees with an initial opportunity to enroll within the pay period these employees become eligible, the employing office may not allow one of the eligible employees' coverage retroactive to the start of the pay period when they become eligible and force the other eligible employee to wait until the first day of the next pay period. All employing offices are required to implement the proposed changes to achieve an equitable result for all eligible employees. OPM seeks comment on this approach to avoid circumstances where employees of one agency could be offered the earliest possible effective date of coverage based on the agency's capabilities but an employee at another agency is not offered the same effective date of coverage because that agency's systems and processes are not updated accordingly. OPM also invites comments on any administrative or operational differences in applying the proposed changes to new employees and other employees with an initial opportunity to enroll ( i.e., employee who experiences a qualifying life event).

OPM estimates approximately 230,000 employees with an initial opportunity to enroll submit appropriate requests and are newly enrolled in FEHB each year. The most common example of an employee with an initial opportunity to enroll is in the case of new employees. Another example of an employee with an initial opportunity to enroll would be in the case of an employee excluded from coverage, as described in 5 CFR 890.102(c), who moves from a position that was excluded from coverage to a position that conveys coverage. Using the example of a new employee, under the current regulatory structure, the new employee who submits an FEHB enrollment request on their start date, or sometime during the first pay period the new employee is in pay status, must wait until the first day of the following pay period for FEHB coverage to become effective. A gap in coverage may result if the new employee has not extended previous group coverage under any applicable rules permitting such extension or does not have individual coverage. Gaps in coverage may further result in costly medical expenditures that must be borne by the individual. OPM takes its agency responsibilities under recent Executive Order 14070  1 earnestly and, in furtherance of the E.O. goals, has identified modification of the effective date of FEHB as an action that expands access to quality coverage. The changes proposed in this rulemaking can work to ensure more timely access to health insurance which may in turn assist in reducing financial burdens for care received while uninsured and removing barriers to consistent care for services such as mental health services, vaccines, and contraceptives. OPM believes that permitting health insurance coverage to become effective at the start of employment could reduce the risk of new employees enduring coverage gaps and potentially costly medical bills associated with such gaps and also act as an attractive recruitment tool in building a well-qualified, robust workforce.

This proposed rule would align the FEHB Program with the practices of some nonfederal employers that provide first-day coverage and the current practices of the Federal Employees' Group Life Insurance (FEGLI) Program. Under FEGLI regulations at 5 CFR 870.501, FEGLI Basic coverage begins on the day the new employee enters on duty in pay status. Health insurance is an influential factor on employee recruitment, retention, and satisfaction, and is a benefit offering critical coverage, in sometimes life or death circumstances; therefore, OPM prioritizes the FEHB Program for proposed effective date changes. This proposed rule would not impact the effective date of coverage for Federal Employees Dental and Vision Insurance Program (FEDVIP) under 5 CFR 894.504 or Federal Long Term Care Insurance Program (FLTCIP) under 5 CFR 875.404. OPM invites comment on whether similar modifications to the effective date of the FEDVIP would be beneficial.

Under this proposed rule, FEHB coverage could become effective at the beginning of the initial pay period in which the employee with an initial opportunity to enroll meets the criteria of becoming eligible for FEHB coverage, being in pay status, and providing an appropriate request to enroll that is received by the employing office within the initial pay period the employee becomes eligible. If the appropriate request to enroll is not received by the employing office within the initial pay period the employee becomes eligible, then the newly eligible employee still has the remainder of the 60 days to enroll in FEHB. However, the effective date then becomes the first day of the first pay period that begins after the date the employing office receives an appropriate request to enroll or change the enrollment and that follows a pay period during any part of which the employee is in pay status. The following examples illustrate the scenarios described in this paragraph for a new employee entering on duty and for an excluded employee that becomes newly eligible for coverage:

Example 1. The pay period begins on Sunday, August 27, 2023, and runs until Saturday, September 9, 2023. A new employee enters on duty and commences pay status at an agency on Monday, August 28, 2023. The new employee submits an appropriate request to enroll, including family member eligibility documentation, and it is received by the employing office on Tuesday, September 5, 2023, which is within the initial pay period of the employee's initial opportunity to enroll. FEHB coverage for the new employee and their eligible family member(s) would be effective retroactively to Sunday, August 27, 2023.

Example 2. The pay period begins on Sunday, August 27, 2023, and runs until Saturday, September 9, 2023. A new employee enters on duty and commences pay status at an agency on Monday, August 28, 2023. The new employee submits an appropriate request to enroll, including family member eligibility documentation, and it is received by the employing office on Tuesday, September 12, 2023, which is not within the initial pay period of the employee's initial opportunity to enroll. FEHB coverage for the new employee and their eligible family member(s) is effective Sunday, September 24, 2023, which is the first day of the first pay period that begins after the date the employing office receives an appropriate request to enroll.

Example 3: The pay period begins on Sunday, August 27, 2023, and runs until Saturday, September 9, 2023. An employee formerly in a position that was excluded from coverage moves to a position that conveys coverage and is a newly eligible employee in pay status on Monday, August 28, 2023. The newly eligible employee submits an appropriate request to enroll, including family member eligibility documentation, and it is received by the employing office on Tuesday, September 5, 2023, which is within the initial pay period of the newly eligible employee's initial opportunity to enroll. FEHB coverage for the newly eligible employee and their eligible family member(s) would be effective retroactively to Sunday, August 27, 2023.

Example 4: The pay period begins on Sunday, August 27, 2023, and runs until Saturday, September 9, 2023. An employee formerly in a position that was excluded from coverage moves to a position that conveys coverage and is a newly eligible employee in pay status on Monday, August 28, 2023. The newly eligible employee submits an appropriate request to enroll, including family member eligibility documentation, and it is received by the employing office on Tuesday, September 12, 2023, which is not within the initial pay period of the newly eligible employee's initial opportunity to enroll. FEHB coverage for the newly eligible employee and their eligible family member(s) is effective Sunday, September 24, 2023, which is the first day of the first pay period that begins after the date the employing office receives an appropriate request to enroll.

OPM seeks comment on effectuating the proposed changes, including whether it is preferable to begin coverage effective retroactively to the start of the pay period in which the employee becomes eligible or to begin coverage effective retroactively to the date of entry on duty in pay status or other initial opportunity to enroll.

Employing offices would be required to implement the new requirements when this rulemaking is finalized and have their enrollment and payroll systems accommodate coverage effective retroactive to the start of the initial pay period in which the employee becomes eligible and is in pay status, and the appropriate request to enroll is received by the employing office. While some employing offices have the current system capability to implement this change immediately upon finalization of this rulemaking, others may not. As a result, OPM is allowing additional time for compliance by proposing that all employing offices implement the changes outlined in this rulemaking no later than 18 months after the publication date of the final rule. Those employing offices that can implement sooner are encouraged to do so.

OPM proposes to amend the FEHB regulations at 5 CFR 890.301 to permit FEHB coverage to become effective at the beginning of the initial pay period that the employee with an initial opportunity to enroll becomes eligible for FEHB coverage and is in pay status, provided an appropriate request to enroll is received by the employing office within the initial pay period the employee becomes eligible. This proposed rule would redesignate 5 CFR 890.301(b) as paragraph (b)(1) to allow the addition of a new paragraph (b)(2) that outlines the changes discussed in the previous section. Specifically, paragraph (b)(2) pertains to employees with an initial opportunity to enroll, allowing for FEHB coverage to be effective the same pay period the employee becomes eligible.

Under existing regulations at 5 CFR 890.301(a), an employee with an initial opportunity to enroll may elect to enroll or not to enroll within 60 days after becoming eligible. This rulemaking does not change the eligibility period, and instead proposes that FEHB coverage for employees with an initial opportunity to enroll will be effective retroactively to the start of the initial pay period the employee first becomes eligible and is in pay status if the employee submits, and the employing office receives, the appropriate request to enroll within the initial pay period the employee becomes eligible. If the employee does not submit and the employing office does not receive an appropriate request to enroll within the initial pay period the employee first becomes eligible, then coverage will be effective on the first day of the first pay period that begins after the date the employing office receives an appropriate request to enroll or change the enrollment and that follows a pay period that the employee is in pay status. OPM guidance  2 directs employing offices to request proof of family member eligibility during the initial opportunity to enroll.

In addition to other aspects of this proposed rule, OPM is requesting information on leading practices from other employers on when health insurance coverage begins. OPM recognizes that employees, during their initial opportunity to enroll, may experience an immediate need for coverage. Additionally, as employees, during their initial opportunity to enroll, weigh and evaluate different plans and coverage options, employees may not be able to make a decision during their first pay period, and may utilize the full enrollment period. OPM specifically invites comments on the effective date of coverage and if that effective date should be tied to when, during the enrollment period, the election form is submitted and received ( i.e., retroactive to the start of the pay period or prospective to the start of the next pay period). If based on responses, OPM determines that it would be advisable to adopt a different approach than that proposed here, OPM anticipates that it would likely issue a revised proposal for comment on specific aspects of implementing the alternate approach.

OPM held stakeholder meetings with agencies and non-governmental entities including Tribal Benefits Officers and FEHB Carriers to solicit feedback on the implications and operational aspects of proposed changes in this rulemaking. While some stakeholders welcomed the proposed changes, others raised operational concerns and the potential cost burdens due to implementation. One potential impact of this rulemaking is the cost employing offices may incur to update enrollment and payroll systems to accommodate the changes. The estimated level of effort for OPM to implement the regulation changes would be about 40 hours of focused work for two GS 15 director level and two GS 14 supervisor level Federal employees to perform system tests and update business processes at an estimated cost of approximately $22,085 in employee resources. 3 OPM considered several deadlines as an alternative to the 18-month compliance timeline but settled on the current timeline based on stakeholder feedback received during the rule drafting process. That feedback revealed that agencies use a variety of systems and processes that cannot easily be updated on the same timeline. Therefore, OPM is proposing to ease this burden by delaying the effective date of compliance to 18 months after the final rule is effective. To supplement our analysis and inform our final decision on the compliance date, OPM is seeking comments on the feasibility of implementing changes to the effective date of FEHB coverage, including human resource and payroll system capability to process FEHB coverage with an effective date as of when the employee becomes eligible ( i.e., the day of entry on duty or a change in employment status that results in an employee being newly eligible for FEHB coverage) and the level of effort, estimated cost, and anticipated timeline needed to implement the changes in this rulemaking. OPM also invites comments on the ability of systems to prorate premiums for coverage with an effective date other than the start of a pay period.

While we acknowledge the concerns raised, OPM believes the value of offering FEHB coverage as soon as employees are eligible exceeds the burden of implementing the proposed changes. An expected benefit of this proposed rule is that affected employees will gain access to health insurance plans in a more expedient manner and, therefore, potentially lowering the possibility of uninsured employees personally incurring high-cost medical bills for care received during a gap in health insurance coverage. Federal employees, especially those in positions to be first responders, medical professionals, and representatives on foreign soil, serve a critical need when serving in their position and may be at an increased risk of injury and illness. Having health insurance as soon as they are eligible offers comfort and security. OPM has received stakeholder feedback that the proposed changes have been requested by some new hires and may also have a positive effect in recruiting persons with disabilities to the Federal workforce OPM seeks comments on the implications, positive or negative, on employee recruitment and retention as well as any effects on administrative processing.

Because it is specific to the FEHB Program and a subset of Federal employees and their eligible family members, OPM does not believe this rulemaking will have a large impact on the broader health insurance markets. For many carriers, FEHB generally constitutes a small percentage of business of the overall health insurance carrier's book of business. For the 2024 plan year, the FEHB Program has 67 participating carriers offering a total of 156 plan choices. OPM illustrates the potential impact of the rule under the assumption of 100% participation of the newly eligible employee population and a uniform plan selection for the additional two weeks of coverage that would become available to newly eligible employees as a result of the proposed rule. Total premiums for 2024 are estimated to be $64.5 billion which, across all enrollment types (Self, Self Plus One, Self and Family), equates to $15,851 per subscriber. Assuming bi-weekly pay periods, the added premium cost would be $610 per employee with an initial opportunity to enroll for an estimated total cost of $140.2 million per year for the approximately 230,000 newly eligible employees affected by this rulemaking. However, participation may be substantially lower than 100%, for example because individuals may have existing health insurance coverage covering the relevant time period, or newly eligible individuals may choose plans with different average premiums. OPM lacks data to precisely estimate impacts along these lines. However, OPM believes this will be highly utilized, and assumes that the rule will result in effects equivalent to 80% of these potential effects. This implies effects along these lines of approximately $112.2 million per year. OPM seeks public comment on methods or data to inform these estimates.

Executive Orders 13563, 12866, and 14094 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis must be prepared for major rules with effects of $200 million or more in any one year. This rulemaking does not reach that threshold but has otherwise been designated as a “significant regulatory action” under section 3(f) of Executive Order 12866, as supplemented by Executive Orders 13563 and 14094.

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

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

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

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

Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number.

This proposed rule involves, but does not make any changes to, an OMB approved collection of information subject to the PRA for the FEHB Program, OMB No. 3206-0160, Health Benefits Election Form. The public reporting burden for this collection is estimated to average 30 minutes per response, including time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. The total burden hour estimate for this form is 9,000 hours. The system of records notice for this collection is: OPM/Central-23, “FEHB Program Enrollment Records,” available at https://www.federalregister.gov/d/2021-01259. Additional information regarding this collection—including all current background materials—can be found at https://www.reginfo.gov/public/do/PRAMain by using the search function to enter either the title of the collection or the OMB Control Number.

Accordingly, OPM proposes to amend 5 CFR part 890 as follows:

The addition reads as follows:

This action, pursuant to 5 U.S.C. 553, proposes to amend regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This proposed rule is issued under Marketing Order No. 905 as amended (7 CFR part 905), regulating the handling of oranges, grapefruit, tangerines, and pummelos grown in Florida. Part 905 (referred to as “the Order”) is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Committee locally administers the Order and is comprised of growers and handlers of fresh citrus operating within the area of production, and one public member.

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

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

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the Order now in effect, Florida citrus handlers are subject to assessments. Funds to administer the Order are derived from such assessments. It is intended that the assessment rate would be applicable to all assessable fruit for the 2023-2024 fiscal period, and continue until amended, suspended, or terminated.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with the United States Department of Agriculture (USDA) a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and requesting a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed no later than 20 days after the date of the entry of the ruling.

This proposed rule would increase the assessment rate for Florida citrus handled under the Order from $0.015 per 4/5-bushel carton or equivalent, the rate that was initially established for the 2018-2019 fiscal year and subsequent fiscal years, to $0.02 per 4/5-bushel carton or equivalent.

Section 905.41 authorizes the Committee, with the approval of AMS, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members are familiar with the Committee's needs and with the costs of goods and services in their local area and are, thus, in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.

For the 2018-2019 fiscal year and subsequent fiscal periods, the Committee recommended, and AMS approved, an assessment rate of $0.015 per 4/5-bushel carton of citrus or equivalent. That rate continues in effect from fiscal period to fiscal period until modified, suspended, or terminated by AMS upon recommendation and information submitted by the Committee or other information available to AMS. This proposed rule would increase the assessment rate from $0.015 to $0.02 per 4/5-bushel carton of citrus or equivalent for the 2023-2024 fiscal year and subsequent fiscal periods.

The Committee met on August 8, 2023, and recommended 2023-2024 fiscal period expenditures of $124,624 and an assessment rate of $0.02 per 4/5-bushel carton of citrus or equivalent handled for the 2023-2024 fiscal year and subsequent fiscal periods. In comparison, last year's budgeted expenditures were $122,680. The proposed assessment rate of $0.02 is $0.005 higher than the rate currently in effect. The Committee recommended increasing the assessment rate to better align assessment revenue with budgeted expenses. The Committee projects handler receipts of approximately 6,700,000 4/5-bushel cartons of citrus or equivalent for the 2023-2024 fiscal year, which is about 4,764,544 cartons more than was handled for the 2022-2023 fiscal year.

The total expenditures recommended by the Committee for the 2023-2024 fiscal period are approximately $124,624. The major budgeted expenditures include $99,624 for management; $10,000 for auditing; and $5,000 for data from the Division of Fruits and Vegetables. By comparison, budgeted expenditures for these activities in the 2022-2023 fiscal period were $97,680; $10,000; and $5,000, respectively. At the current assessment rate of $0.015, the expected 6,700,000 4/5-bushel cartons or equivalent of assessable Florida citrus would generate $100,500 in assessment revenue (6,700,000 cartons multiplied by $0.015 assessment rate), short of the Committee's anticipated expenditures of $124,624 for the 2023-2024 fiscal period. By increasing the assessment rate by $0.005 to $0.02, assessment income would generate $134,000 (6,700,000 cartons multiplied by $0.02 assessment rate) for the 2023-2024 fiscal year. This amount would be appropriate to ensure that the Committee has sufficient revenue to fully fund its recommended 2023-2024 fiscal period budgeted expenditures.

The Committee derived the recommended assessment rate by considering anticipated expenses, an estimated 6,700,000 4/5-bushel cartons or equivalent of assessable Florida citrus, and the amount of funds available in reserve. Income derived from handler assessments ($134,000) would be adequate to cover budgeted expenses ($124,624). Funds available in the reserve (currently about $165,000) are expected to be kept within the maximum permitted by the Order (approximately two fiscal periods' expenses as authorized in § 905.42).

The proposed assessment rate would continue in effect indefinitely unless modified, suspended, or terminated by AMS upon recommendation and information submitted by the Committee or other available information.

Although this assessment rate would be in effect for an indefinite period, the Committee would continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or AMS. Committee meetings are open to the public and interested persons may express their views at these meetings. AMS will evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed, and further rulemaking would be undertaken as necessary. The Committee's 2023-2024 budget, and those for subsequent fiscal periods, will be reviewed and, as appropriate, approved by AMS.

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

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

There are 14 handlers of Florida citrus who are subject to regulation under the Order and approximately 500 citrus producers in the regulated area. At the time this analysis was prepared, the Small Business Administration (SBA) defined small agricultural growers as those having annual receipts of no more than $4,000,000 for orange producers or $4,250,000 for other citrus producers, and small agricultural service firms, including handlers, are defined as those whose annual receipts are less than $34,000,000 (13 CFR 121.201).

According to data from the National Agricultural Statistics Service (NASS), the weighted average packing house door equivalent price for fresh Florida oranges for the 2022-2023 season was approximately $10.54 per carton with total shipments of around 3,224,000 cartons. Based on this information, the majority of orange handlers have average annual receipts of significantly less than $34,000,000 ($10.54 multiplied by 3,224,000 cartons equals $33,980,960, divided by 14 handlers equals $2,427,211 per handler). The weighted average packing house door price for other Florida citrus for the 2022-2023 season was $19.12 per carton with total shipments of 2,804,000 cartons. Based on this information, the majority of other citrus handlers have average annual receipts of significantly less than $34,000,000 ($19.12 multiplied by 2,804,000 cartons equals $53,612,480, divided by 14 handlers equals $3,829,463 per handler).

In addition, based on the NASS data, the weighted average orange grower price for the 2022-2023 season was estimated at $9.45 per carton of fresh oranges. Based on grower price, shipment data, and the total number of Florida orange growers, the average annual grower revenue is well below $4,000,000 ($9.45 multiplied by 3,224,000 cartons equals $30,466,800, divided by 500 growers equals $60,934 per grower). The weighted average other citrus grower price for the 2022-2023 season was estimated at $16.28 per carton of fresh citrus. Based on grower price, shipment data, and the total number of Florida citrus growers, the average annual grower revenue is well below $4,250,000 ($16.28 multiplied by 2,804,000 cartons equals $45,649,120, divided by 500 growers equals $91,298 per grower). Thus, the majority of Florida citrus handlers and growers may be classified as small entities.

This proposed rule would increase the assessment rate for the 2023-2024 fiscal year and subsequent fiscal years from $0.015 to $0.02 per 4/5-bushel carton of citrus or equivalent. The Committee recommended 2023-2024 expenditures of $124,624 and an assessment rate of $0.02 per 4/5-bushel carton. The proposed assessment rate of $0.02 is $0.005 more than the previous rate. The quantity of assessable Florida citrus for the 2023-2024 season is estimated at 6,700,000 4/5-bushel cartons or equivalent. Thus, the $0.02 rate should provide $134,000 in assessment income (6,700,000 cartons multiplied by $0.02 assessment rate). Income derived from handler assessments would be adequate to cover budgeted expenses.

The major expenditures recommended by the Committee for the 2023-2024 fiscal year include $99,624 for management; $10,000 for auditing; and $5,000 for data from the Division of Fruits and Vegetables. Budgeted expenses for these same items in the 2022-2023 fiscal period were $97,680; $10,000; and $5,000, respectively.

The Committee recommended increasing the assessment rate to cover anticipated expenses for the 2023-2024 fiscal period. Shipments for the 2023-2024 season are projected to be 6,700,000 4/5-bushel cartons or equivalent, about 2 million more than estimated for the previous year. At the current assessment rate of $0.015, assessment income would equal $100,500 (6,700,000 cartons multiplied by $0.015 assessment rate), an amount below the Committee's anticipated expenditures of $124,624 for the 2023-2024 fiscal period. By increasing the assessment rate by $0.005, assessment income would be approximately $134,000 (6,700,000 cartons multiplied by $0.02 assessment rate). This amount should provide sufficient funds to meet anticipated expenses for the 2023-2024 fiscal period.

Prior to arriving at this budget and assessment rate, the Committee considered maintaining the current assessment rate of $0.015. However, the Committee would need to further draw down reserves to meet its expenses. The Committee had to use some of its reserves in the 2022-2023 fiscal period after a hurricane damaged the crop, and Committee members did not want to utilize additional funds from reserves to meet 2023-2024 expenses. Consequently, the alternative of maintaining the current assessment rate was rejected.

A review of historical information and preliminary information pertaining to the upcoming fiscal period indicates the average grower price for the 2023-2024 season should be approximately $11.00 per 4/5-bushel carton of citrus or equivalent. Therefore, the estimated assessment revenue for the 2023-2024 crop year as a percentage of total grower revenue would be about 0.18 percent ($0.02 divided by $11.00 multiplied by 100).

This proposed rule would increase the assessment obligation imposed on handlers. Assessments are applied uniformly on all handlers, and some of the costs may be passed on to producers. However, these costs are expected to be offset by the benefits derived by the operations of the Order.

The Committee's meetings are widely publicized throughout the Florida citrus industry and all interested persons are invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the August 8, 2023, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit comments on this proposed rule, including the regulatory impacts of this action on small businesses.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Order's information collection requirements have been previously approved by OMB and assigned OMB No. 0581-0189 Fruit Crops. No changes in those requirements would be necessary as a result of this proposed rule. Should any changes become necessary, they would be submitted to OMB for approval.

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

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

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

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

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

A 30-day comment period is provided to allow interested persons to comment on this proposed rule. All written comments timely received will be considered before a final determination is made on this rulemaking.

For the reasons set forth in the preamble, the Agricultural Marketing Service proposes to amend 7 CFR part 905 as follows:

Comments Invited

The FAA invites interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the proposed special conditions, explain the reason for any recommended change, and include supporting data.

On December 31, 2019, Gulfstream applied for an amendment to Type Certificate No. T00015AT to include the new Model GVIII-G700 and GVIII-G800 series airplanes. While the comment period provided by the FAA for proposed special conditions has typically been thirty days, the FAA is providing twenty days in this instance, due to the relative similarity of these conditions with the terms of previously issued special conditions, and due to the pendency of the anticipated delivery date for the affected airplane models, per the criteria in 14 CFR 11.38.

The FAA will consider all comments received by the closing date for comments, and will consider comments filed late if it is possible to do so without incurring delay. The FAA may change these special conditions based on the comments received.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in title 14, Code of Federal Regulations (14 CFR) 11.35, the FAA will post all comments received without change to https://www.regulations.gov/, including any personal information you provide. The FAA will also post a report summarizing each substantive verbal contact received about these special conditions.

Confidential Business Information (CBI) is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to these proposed special conditions contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to these special conditions, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and the indicated comments will not be placed in the public docket of these special conditions. Send submissions containing CBI to the individual listed in the For Further Information Contact section above. Comments the FAA receives, which are not specifically designated as CBI, will be placed in the public docket for these special conditions.

As noted above, on December 31, 2019, Gulfstream applied for an amendment to Type Certificate No. T00015AT to include the new Model GVIII-G700 and GVIII-G800 series airplanes. These airplanes, which will be derivatives of the Model GVI currently approved under Type Certificate No. T00015AT, are twin-engine, transport-category airplanes, with seating for 19 passengers, and a maximum take-off weight of 107,600 pounds (GVIII-G700) and 105,600 pounds (GVIII-G800).

Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, Gulfstream must show that the Model GVIII-G700 and GVIII-G800 series airplanes meet the applicable provisions of the regulations listed in Type Certificate No. T00015AT, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.

If the Administrator finds that the applicable airworthiness regulations ( e.g., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Gulfstream Model GVIII-G700 and GVIII-G800 series airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Gulfstream Model GVIII-G700 and GVIII-G800 series airplanes must comply with the exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with 14 CFR 11.38, and they become part of the type certification basis under § 21.101.

The Gulfstream Model GVIII-G700 and GVIII-G800 airplanes will incorporate the following novel or unusual design feature:

Side-facing seats, oriented in the aircraft with the occupant facing 90 degrees to the direction of aircraft travel, with or without incorporation of an airbag systems or inflatables.

On June 16, 1988, Title 14, Code of Federal Regulations (14 CFR) part 25 was amended to revise the emergency landing conditions that must be considered in the design of transport category airplanes. This amendment (25-64) revised the static load conditions in § 25.561 and added a new § 25.562 that required dynamic testing for all seats approved for occupancy during takeoff and landing. The intent of Amendment 25-64 was to provide an improved level of safety for occupants on transport category airplanes; however, because most seating on transport category airplanes is forward-facing the pass/fail criteria developed in Amendment 25-64 focused primarily on these seats.

Prior to 2012, the FAA granted exemptions  2 for the multiple-place side-facing-seat installations because the existing test methods and acceptance criteria did not produce a level of safety equivalent to the level of safety provided for forward-and aft-facing seats. These exemptions were subject to many conditions that reflected the injury-evaluation criteria and mitigation strategies available at the time of the exemption issuance. The FAA also issued special conditions to address single-place side-facing seats because it determined, at the time, that those conditions provided the same level of safety as for forward- and aft-facing seats.

Due to the novelty of side-facing seats in transport category airplanes, acceptable safety measures for § 25.562 were unknown. The FAA conducted research to develop an acceptable method of compliance with §§ 25.562 and 25.785(b) for side-facing seat installations. That research has identified injury considerations and evaluation criteria in addition to those previously used to approve side-facing seats (see published report DOT/FAA/AR-09/41, July 2011  3 ). One particular concern that was identified during the FAA's research program but not addressed in special conditions prior to 2012 was the significant leg injuries that can occur to occupants of both single- and multiple-place side-facing seats. Because this type of injury does not occur on forward- and aft-facing seats, the FAA determined that to achieve the level of safety envisioned in Amendment 25-64, additional requirements would be needed as compared to previously issued special conditions. Nonetheless, the research has now allowed the development of a single set of special conditions that is applicable to all fully side-facing seats.

On November 5, 2012, the FAA released PS-ANM-25-03-R1, “Technical Criteria for Approving Side-Facing Seats,” to update existing FAA certification policy on §§ 25.562 and 25.785(a) and (b) at Amendment 25-64 for single- and multiple-place side-facing seats. This policy addresses both the technical criteria for approving side-facing seats and the implementation of those criteria. The FAA methodology detailed in PS-ANM-25-03-R1 has been used to develop these proposed special conditions. Some of the conditions issued for previous exemptions are still relevant and are included in these proposed special conditions; however, others have been replaced by different criteria that reflect current research findings described above, as well as design features from the Gulfstream GVII model side-facing seat design.

The proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

As discussed above, these proposed special conditions are applicable to the Gulfstream Model GVIII-G700 and GVIII-G800 series airplanes. Should Gulfstream apply at a later date for a change to the type certificate to include another model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would apply to the other model as well.

This action affects only a certain novel or unusual design feature on Gulfstream Model GVIII-G700 and GVIII-G800 series of airplanes. It is not a rule of general applicability.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Gulfstream Model GVIII-G700 and GVIII-G800 series airplanes.

In addition to the airworthiness standards in §§ 25.562 and 25.785, the FAA proposes the following special conditions as part of the type certification basis for the Gulfstream Model GVIII-G700 and GVIII-G800 series aircraft. Items 1 through 3 are applicable to all side-facing seat installations on these airplanes, whereas item 4 would impose requirements applicable to side-facing seats equipped with an airbag system in the shoulder belt, and item 5 would impose requirements applicable to side-facing seats equipped with leg-flail airbag systems.

1. Additional requirements applicable to tests or rational analysis conducted to show compliance with §§ 25.562 and 25.785 for side-facing seats:

a. The longitudinal test(s) conducted in accordance with § 25.562(b)(2) to show compliance with the seat-strength requirements of § 25.562(c)(7) and (8), and these special conditions must have an ES-2re anthropomorphic test dummy (ATD) (49 CFR part 572 subpart U) or equivalent, or a Hybrid-II ATD (49 CFR part 572, subpart B as specified in § 25.562) or equivalent, occupying each seat position and including all items contactable by the occupant ( e.g., armrest, interior wall, or furnishing) if those items are necessary to restrain the occupant. If included, the floor representation and contactable items must be located such that their relative position, with respect to the center of the nearest seat place, is the same at the start of the test as before floor misalignment is applied. For example, if floor misalignment rotates the centerline of the seat place nearest the contactable item 8 degrees clockwise about the aircraft x-axis, then the item and floor representations must be rotated by 8 degrees clockwise also to maintain the same relative position to the seat place, as shown in Figure 1. Each ATD's relative position to the seat after application of floor misalignment must be the same as before misalignment is applied. The ATD pelvis must remain supported by the seat pan, and the restraint system must remain on the pelvis and shoulder of the ATD until rebound begins. No injury-criteria evaluation is necessary for tests conducted only to assess seat-strength requirements.

b. The longitudinal test(s) conducted in accordance with § 25.562(b)(2), to show compliance with the injury assessments required by § 25.562(c) and these special conditions, may be conducted separately from the test(s) to show structural integrity. Structural-assessment tests must be conducted as specified in paragraph 1a, above, and the injury-assessment test must be conducted without yaw or floor misalignment. Injury assessments may be accomplished by testing with ES-2re ATD (49 CFR part 572 subpart U) or equivalent at all places. Alternatively, these assessments may be accomplished by multiple tests that use an ES-2re at the seat place being evaluated, and a Hybrid-II ATD (49 CFR part 572, subpart B, as specified in § 25.562) or equivalent used in all seat places forward of the one being assessed, to evaluate occupant interaction. Seat places aft of the one being assessed may be unoccupied. If a seat installation includes adjacent items that are contactable by the occupant, the injury potential of that contact must be assessed. To make this assessment, tests may be conducted that include the actual item, located, and attached in a representative fashion. Alternatively, the injury potential may be assessed by a combination of tests with items having the same geometry as the actual item, but having stiffness characteristics that would create the worst case for injury (injuries due to both contact with the item and lack of support from the item).

c. If a seat is installed aft of structure ( e.g., an interior wall or furnishing) that does not have a homogeneous surface contactable by the occupant, additional analysis and/or test(s) may be required to demonstrate that the injury criteria are met for the area which an occupant could contact. For example, different yaw angles could result in different injury considerations and may require additional analysis or separate test(s) to evaluate.

d. To accommodate a range of occupant heights (5th percentile female to 95th percentile male), the surface of items contactable by the occupant must be homogenous 7.3 inches (185 mm) above and 7.9 inches (200 mm) below the point (center of area) that is contacted by the 50th percentile male size ATD's head during the longitudinal test(s) conducted in accordance with paragraphs a, b, and c, above. Otherwise, additional head-injury criteria (HIC) assessment tests may be necessary. Any surface (inflatable or otherwise) that provides support for the occupant of any seat place must provide that support in a consistent manner regardless of occupant stature. For example, if an inflatable shoulder belt is used to mitigate injury risk, then it must be demonstrated by inspection to bear against the range of occupants in a similar manner before and after inflation. Likewise, the means of limiting lower-leg flail must be demonstrated by inspection to provide protection for the range of occupants in a similar manner.

e. For longitudinal test(s) conducted in accordance with § 25.562(b)(2) and these special conditions, the ATDs must be positioned, clothed, and have lateral instrumentation configured as follows:

(1) ATD positioning:

Lower the ATD vertically into the seat while simultaneously (see Figure 2 for illustration):

(a) Aligning the midsagittal plane (a vertical plane through the midline of the body; dividing the body into right and left halves) with approximately the middle of the seat place.

(b) Applying a horizontal x-axis direction (in the ATD coordinate system) force of about 20 pounds (lbs) (89 Newtons [N]) to the bottom of the feet of the ATD with the legs straight, to compress the seat back cushion.

(c) Keeping the legs nearly horizontal by supporting them just behind the ankles

(d) Once all lifting devices have been removed from the ATD:

(i) Rock it slightly to settle it in the seat.

(ii) Gently lower the ankles of the ATD bending the legs at the knee joints. Do not allow the pelvis of the ATD to be moved when the lower legs are lowered. The seat back cushion must remain compressed. Separate the knees by about 4 inches (100 mm).

(iii) Set the ES-2re's head at approximately the midpoint of the available range of z-axis rotation (to align the head and torso midsagittal planes).

(iv) Position the ES-2re's arms at the joint's mechanical detent that puts them at approximately a 40-degree angle with respect to the torso. Position the Hybrid-II ATD hands on top of its upper legs.

(v) Position the feet such that the centerlines of the lower legs are approximately parallel to a lateral vertical plane (in the aircraft coordinate system).

(2) ATD clothing: Clothe each ATD in form-fitting, mid-calf-length (minimum) pants and shoes (size 11E) weighing about 2.5 lb (1.1 Kg) total. The color of the clothing should be in contrast to the color of the restraint system. The ES-2re jacket is sufficient for torso clothing, although a form-fitting shirt may be used in addition if desired.

(3) ES-2re ATD lateral instrumentation: The rib-module linear slides are directional, i.e., deflection occurs in either a positive or negative ATD y-axis direction. The modules must be installed such that the moving end of the rib module is toward the front of the aircraft. The three abdominal-force sensors must be installed such that they are on the side of the ATD toward the front of the aircraft.

f. The combined horizontal/vertical test, required by § 25.562(b)(1) and these special conditions, must be conducted with a Hybrid II ATD (49 CFR part 572 subpart B as specified in § 25.562), or equivalent, occupying each seat position.

g. Restraint systems:

(1) If inflatable restraint systems are used, they must be active during all dynamic tests conducted to show compliance with § 25.562.

(2) The design and installation of seat-belt buckles must prevent unbuckling due to applied inertial forces or impact of the hands/arms of the occupant during an emergency landing.

2. Additional performance measures applicable to tests and rational analysis conducted to show compliance with §§ 25.562 and 25.785 for side-facing seats:

a. Body-to-body contact: Contact between the head, pelvis, torso, or shoulder area of one ATD with the adjacent-seated ATD's head, pelvis, torso, or shoulder area is not allowed. Contact during rebound is allowed.

b. Thoracic: The deflection of any of the ES-2re ATD upper, middle, and lower ribs must not exceed 1.73 inches (44 mm). Data must be processed as defined in Federal Motor Vehicle Safety Standards (FMVSS) 571.214.

c. Abdominal: The sum of the measured ES-2re ATD front, middle, and rear abdominal forces must not exceed 562 lbs (2,500 N). Data must be processed as defined in FMVSS 571.214.

d. Pelvic: The pubic symphysis force measured by the ES-2re ATD must not exceed 1,350 lbs (6,000 N). Data must be processed as defined in FMVSS 571.214.

e. Leg: Axial rotation of the upper-leg (femur) must be limited to 35 degrees in either direction from the nominal seated position.

f. Neck: As measured by the ES-2re ATD and filtered at CFC 600 as defined in SAE J211:

(1) The upper-neck tension force at the occipital condyle (O.C.) location must be less than 405 lb (1,800 N).

(2) The upper-neck compression force at the O.C. location must be less than 405 lb (1,800 N).

(3) The upper-neck bending torque about the ATD x-axis at the O.C. location must be less than 1,018 in-lb (115 Nm).

(4) The upper-neck resultant shear force at the O.C. location must be less than 186 lb (825 N).

g. Occupant (ES-2re ATD) retention: The upper-torso restraint straps (if present) must remain on the ATD's shoulder during the impact. The pelvic restraint must remain on the ES-2re ATD's pelvis during the impact. The pelvic restraint must remain on the ES-2re ATD's pelvis during rebound unless the following criteria are met. A 250 lb. lap belt tension limit based upon the findings in Civil Aerospace Medical Institute (CAMI) report DOT/FAA/AM-17/02. The data should be filtered at CFC 60 as defined in SAE J211. In order to complete the evaluation using this tension criteria, three things are needed.

1. A clear indication of when the belt moves above the pelvis. Loose clothing can make it difficult to determine where the top of the pelvis is, and in turn make it hard to discern exactly when the belt moved above it. This can be improved by marking the top of the pelvis clearly and by positioning the cameras so that the position of the belt, relative to the top of the pelvis can be observed throughout the test (see Figure 3).

2. A measurement of the belt tension during the time when the belt moves above the pelvis. The webbing transducer should be placed to measure the total tension in the forward lap belt segment. If a split (combined body-centered and conventional) leading belt is used, the tension should be measured in the common section so that it reflects the contribution of each segment. Since this placement typically produces contact between the ATD and the transducer, it is important to use a webbing transducer that is not sensitive to contact.

3. Useful video and belt load data must be recorded until significant ATD rebound motion stops. Extra recording time is necessary because submarining usually occurs later in the test than other injury criteria maximums. To completely capture ATD rebound, the necessary time could exceed 500 ms.

h. Occupant (ES-2re ATD) support:

(1) Pelvis excursion: The load-bearing portion of the bottom of the ATD pelvis must not translate beyond the edges of its seat's bottom seat-cushion supporting structure.

(2) Upper-torso support: The lateral flexion of the ATD torso must not exceed 40 degrees from the normal upright position during the impact.

3. For all airbag systems in the shoulder harness and for leg flail, the following apply:

a. Show that the airbag system will deploy and provide protection under crash conditions where it is necessary to prevent serious injury.

b. The means of protection must take into consideration a range of stature from a 2-year-old child to a 95th percentile male.

c. The airbag system must provide adequate protection for each occupant regardless of the number of occupants of the seat assembly, considering that unoccupied seats may have an active airbag system.

d. It must be shown that the airbag system is not susceptible to inadvertent deployment as a result of wear and tear, or inertial loads resulting from in-flight or ground maneuvers (including gusts and hard landings), and other operating and environmental conditions (vibrations, moisture, etc.) likely to occur in service.

e. Deployment of the airbag system must not introduce injury mechanisms to the seated occupant, or result in injuries that could impede rapid egress. This assessment should include an occupant whose seat belt is loosely fastened.

f. It must be shown that inadvertent deployment of the airbag system, during the most critical part of the flight, will either meet the requirement of § 25.1309(b) or not cause a hazard to the airplane or its occupants.

g. It must be shown that the airbag system will not impede rapid egress of occupants 10 seconds after airbag deployment.

h. The airbag system must be protected from lightning and high-intensity radiated fields (HIRF). The threats to the airplane specified in existing regulations regarding lighting, § 25.1316, and HIRF, § 25.1317, are adopted by reference for the purpose of measuring lightning and HIRF protection.

i. The airbag system must function properly after loss of normal aircraft electrical power, and after a transverse separation of the fuselage at the most critical location. A separation at the location of the airbag system does not have to be considered.

j. It must be shown that the airbag system will not release hazardous quantities of gas or particulate matter into the cabin.

k. The airbag system installation must be protected from the effects of fire such that no hazard to occupants will result.

l. A means must be available for a crewmember to verify the integrity of the airbag system prior to each flight, or it must be demonstrated to reliably operate between inspection intervals. The FAA considers that the loss of the airbag-system deployment function alone ( i.e., independent of the conditional event that requires the airbag-system deployment) is a major-failure condition.

m. The inflatable material may not have an average burn rate of greater than 2.5 inches/minute when tested using the horizontal flammability test defined in part 25, appendix F, part I, paragraph (b)(5).

n. The airbag system, once deployed, must not adversely affect the emergency-lighting system ( i.e., block floor proximity lights to the extent that the lights no longer meet their intended function).

o. The airbag system must perform its intended function after impact from other proximate assemblies ( e.g., life raft) that may become detached under the loads specified in §§ 25.561 and 25.562.

4. For seats with an airbag system in the shoulder belts, the following apply:

a. The airbag system in the shoulder belt must provide a consistent approach to energy absorption throughout that range of occupants. The airbag system must be included in each of the certification tests as it would be installed in the airplane. In addition, the following situations must be considered:

(1) The seat occupant is holding an infant.

(2) The seat occupant is a pregnant woman.

b. The design must prevent the airbag system in the shoulder belt from being either incorrectly buckled or incorrectly installed, such that the airbag system in the shoulder belt would not properly deploy. Alternatively, it must be shown that such deployment is not hazardous to the occupant, and will provide the required injury protection.

5. For seats using an airbag system to meet the leg-flail conditions of 2.e. the following apply:

a. At some buttock popliteal length and effective seat bottom depth the lower legs will not be able to make a 90-degree angle with the upper leg; at this point the lower leg flail would not occur. The leg flail airbag system must provide a consistent approach to prevention of leg flail throughout that range of occupants whose lower legs can make a 90-degree angle with the upper legs when seated upright in the seat. Items that need to be considered include, but are not limited to the range of occupants' popliteal height, the range of occupants' buttock popliteal length, the design of the seat effective height above the floor, and the effective depth of the seat bottom cushion.

b. For all g-levels, if the design of the leg flail limited device does absorb some of the impact energy and returns only a portion to the legs (a qualitative assessment), then a rebound leg flail of greater than 35 degrees is acceptable.

c. Threshold test severity must be shown to be non-injurious (less than the post-mortem human subject (PMHS) low-g research testing) for g-levels up to the point where the leg flail airbag is designed to deploy.

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2024-0043; Project Identifier MCAI-2023-00985-E” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Sungmo Cho, Aviation Safety Engineer, FAA, 2200 South 216th Street, Des Moines, WA 98198. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2023-0165, dated August 22, 2023 (EASA AD 2023-0165) (also referred to as the MCAI), to address an unsafe condition for all RRD Model Trent 1000-A, Trent 1000-AE, Trent 1000-C, Trent 1000-CE, Trent 1000-D, Trent 1000-E, Trent 1000-G, and Trent 1000-H engines. The MCAI states that manufacturer inspections detected cracking and separation of blade pairs in the weld region of certain LPT stage 1 blade assemblies. A blade assembly consists of a pair of blades welded together at the outer shroud. There are 85 LPT stage 1 blade assemblies in one set. Such cracking and separation could cause failure of affected parts and damage to the LPT module.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2024-0043.

The FAA reviewed EASA AD 2023-0165, which specifies procedures for inspection of affected LPT stage 1 blade assembly outer shrouds and replacement of the LPT stage 1 blade set and disk. EASA AD 2023-0165 also specifies a reduction of the repetitive inspection intervals if cracking or separation is detected and meets certain criteria. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

These products have been approved by the aviation authority of another country and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would require accomplishing the actions specified in EASA AD 2023-0165 described previously, except for any differences identified as exceptions in the regulatory text of this proposed AD.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has since coordinated with other manufacturers and CAAs to use this process. As a result, the FAA proposes to incorporate EASA AD 2023-0165 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2023-0165 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in the EASA AD does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions within the compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2023-0165. Service information required by the EASA AD for compliance will be available at regulations.gov under Docket No. FAA-2024-0043 after the FAA final rule is published.

The FAA estimates that this AD, if adopted as proposed, would affect 28 engines installed on airplanes of U.S. registry.

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

The FAA estimates the following costs to do any necessary replacements that would be required based on the results of the proposed inspection. The agency has no way of determining the number of engines that might need these replacements.

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

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

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

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

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

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

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

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

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2024-0044; Project Identifier MCAI-2023-00629-A” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Penelope Trease, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The Civil Aviation Authority (CAA), which is the airworthiness authority for the United Kingdom (UK), has issued CAA UK AD G-2022-0017, dated September 20, 2022 (also referred to as the MCAI), to correct an unsafe condition on all Britten-Norman Aircraft Ltd. Model BN2 series Islander airplanes; and Model BN2A Mark III Trislander airplanes. The MCAI states that there have been occurrences of flight control restriction in pitch during the pilot's full and free flight control checks prior to take-off. Investigations into these occurrences revealed interference between the routing of the Koiled Kord, flight control cables, and control column, which could restrict the full and free movement of the flight controls. An incorrectly routed Koiled Kord could snag the rudder pedal adjustment cable, draw it towards the control column tube where it could snag the aileron control stop, and restrict movement of the control column tube. This increased load on the rudder pedal adjustment cable could unlock the adjustment mechanism, permitting the rudder pedals to freely move forward and aft. One of the investigations also revealed that a correctly routed Koiled Kord was entangled with an incorrectly routed rudder pedal adjustment cable, which resulted in snagging the aileron control stop. In order to address this condition, the MCAI requires an inspection using Britten-Norman Service Bulletin SB 398, Issue 2, dated May 30, 2022 (Britten-Norman SB 398, Issue 2), to ensure the Koiled Kord is correctly routed behind the instrument panel and that the rudder pedal adjustment cable and Koiled Kord are not interfering with each other.

The FAA is proposing this AD to address this unsafe condition. Interference between the Koiled Kord, flight control cables, and the control column, if not addressed, could result in loss of control of the airplane during flight.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2024-0044.

The FAA reviewed Britten-Norman SB 398, Issue 2, which specifies procedures for inspecting the cable routing behind the instrument panel to determine if the cables and wiring to the instrument panel, wiring in the surrounding area, the rudder pedal adjuster cable, and the Koiled Kord are routed securely and there is clearance to allow full and free movement of the flight controls, and if interference is found, securely tying the cables so they are clear of the control column for its full range of motion. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

These products have been approved by the aviation authority of another country and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI and service information referenced above. The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.

This proposed AD would require accomplishing the actions specified in the MCAI except as discussed under “Differences Between this Proposed AD and the MCAI.”

The MCAI specifies that if any interference is found during the inspection for interference between the control column, rudder pedal adjuster cable, and any wiring (including the Koiled Kord) while performing a flight control full and free movement check, complete the operator feedback form in Appendix A of Britten-Norman SB 398, Issue 2, and return it to Britten-Norman Aircraft, Ltd. That action would not be required by this proposed AD.

The FAA estimates that this AD, if adopted as proposed, would affect 72 airplanes of U.S. registry.

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

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

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

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

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

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

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

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

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

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

Please note that all comments received are considered part of the public record and made available for public inspection online at www.regulations.gov. If you want to submit personal identifying information (such as your name, address, etc.) as part of your comment, but do not want it to be posted online, you must include the phrase “PERSONAL IDENTIFYING INFORMATION” in the first paragraph of your comment. You must also locate all the personal identifying information you do not want posted online in the first paragraph of your comment and identify what information you want redacted.

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

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

In this document, the Bureau of Prisons (Bureau) proposes to amend, clarify, and streamline inmate discipline regulations in 28 CFR part 541 to conform with current practice; to adopt recommendations of the U.S. Department of Justice Report and Recommendations Concerning the Use of Restrictive Housing (January 2016)  1 (hereinafter “Report”) to reduce the potential length of the disciplinary segregation sanction; and to amend and clarify the list of prohibited act codes.

Section 541.1 currently indicates that the purpose of the subpart is to describe the inmate discipline program. We first propose to add introductory language clarifying that the subpart does not create a private right of action or otherwise permit civil claims for alleged violations. We next propose to make non-substantive alterations in this section to clarify that inmate discipline helps ensure the safety, security, and orderly operation of correctional facilities as well as the protection of the public by sanctioning inmates who commit prohibited acts. We also retain language indicating that the subpart describes the inmate discipline program and ensures that sanctions will not be imposed in a capricious or retaliatory manner. Finally, we reiterate that, consistent with the Rehabilitation Act of 1973, for all discipline cases, the Unit Discipline Committee or Disciplinary Hearing Officer shall consider the individual inmate's mental health and disabilities when determining the appropriateness of sanctions.

Section 541.2 states that the Bureau's inmate discipline program applies to sentenced and unsentenced inmates in Bureau custody and those designated to any prison, institution, or facility in which persons are held in custody by direction of, or under an agreement with, the Bureau of Prisons. Although this language implicitly includes inmates designated to Bureau contract facilities, the Bureau proposes to make this inclusion explicit.

We propose to alter this section to indicate that, for the purposes of these regulations, “staff” indicates staff authorized by the Bureau to implement the inmate discipline program as described in this subpart, and that the inmate discipline program applies to sentenced and unsentenced inmates in Bureau custody or in any facility, including community confinement facilities, in which persons are held in custody by the direction of, or under an agreement with, the Bureau.

Section 541.3 describes prohibited acts and available sanctions. The current regulation divides prohibited acts into four separate categories based on severity: Greatest; High; Moderate; and Low. We now propose to eliminate the “Low” category to eliminate prohibited act codes that were underutilized. The revised list of prohibited acts is explained in more detail below.

The Bureau proposes to make several changes to 28 CFR 541.3 Table 1 to § 541.3—Prohibited Acts and Available Sanctions, as follows:

Clarification of code 101, regarding assaulting any person, or an armed assault on the institution's secure perimeter (to be used only when serious physical injury has been attempted or accomplished).

We propose to clarify the language of this code to indicate that the prohibited conduct is the attempted or accomplished assault and/or battery of any person involving serious physical injury, or an armed assault on the institution's secure perimeter. No changes will be made to the substance or application of this code.

Expansion of code 102, regarding escape.

We propose to expand this code, which currently includes “escape from escort; escape from any secure or non-secure institution, including community confinement; escape from unescorted community program or activity;” and “escape from outside a secure institution,” to clarify that this code prohibits any unauthorized departure from custody, including, but not limited to, unauthorized departure from the buildings, lands, property or perimeter (inside or outside) of any secure or non-secure facility; unauthorized departure from community confinement, work detail, program or activity (whether escorted or unescorted); and unauthorized departure from any authorized location regardless of electronic monitoring devices.

Escape from a work detail is currently included in prohibited act code 200, which we now propose to delete, as the language in that code will be encompassed by revised code 102. In the July 26, 2005, proposed rule on the subject, the Bureau explained that code 200 was created to allow for a less severe sanction than that imposed for any other type of escape if an inmate voluntarily chooses to minimize his prohibited act by returning (70 FR 43093). However, in the intervening years, the Bureau has found that allowing for a less severe sanction for escapes with voluntary return has resulted in greater incidences of inmate escapes and attempts to escape in order to procure contraband to introduce into Bureau facilities.

Therefore, to deter any unauthorized departure from Bureau custody, regardless of whether the inmate chooses to voluntarily return, and to emphasize the severity of the prohibited act, we propose to delete code 200 and include escapes from work details within code 102 in the Greatest Severity Level.

Clarification of code 103, regarding setting a fire.

We propose to clarify the language of this code to prohibit causing ignition or combustion (including, but not limited to, fire or explosion) that either threatens serious bodily harm or is done in furtherance of another Greatest Severity Level prohibited act. No changes will be made to the substance or application of this code.

Clarification of code 104, regarding possession, manufacture, or introduction of a gun, firearm, weapon, sharpened instrument, knife, dangerous chemical, explosive, ammunition, or any instrument that has been modified in order to be used as a weapon.

We propose to clarify the language of this code to prohibit possession, manufacture, or introduction of any item that has been weaponized. Such an item can include firearms, sharpened instruments, unauthorized blades, explosives, ammunition, unauthorized chemicals, or any other object that has been modified in order to be used as a weapon.

Combining codes 105 and 106, regarding rioting and encouraging others to riot.

We propose to combine code 105, rioting, and 106, encouraging others to riot, into one code 105 that clarifies the prohibited act as rioting; promoting rioting; or encouraging others to participate in a riot. In this code, we also define the term “riot” as a disturbance with two or more people that involves violence or threats of violence or damage to government property, for the purpose of preventing or coercing official action.

Expansion of code 108, regarding hazardous tools.

We propose to expand this code, which currently includes “possession, manufacture, introduction or loss” of hazardous tools, to also include “use” of a hazardous tool. We also propose to include in the list of hazardous tool examples those “items necessary in the use of these devices.” Making these changes would allow for discipline if telltale evidence of such items as a cellphone, electronic device, or escape paraphernalia were not found, but items which could only be used with prohibited items are found to have been used.

Separation of codes 110, 111, 112, 113, regarding drugs, narcotics, and marijuana, from those regarding alcohol and intoxicants.

We propose to make a technical amendment involving prohibited act codes 110, 111, 112, and 113, all of which currently cover the prohibited acts of refusing to be tested for, introducing, or making, using, or possessing drugs or alcohol/intoxicants not prescribed by medical staff. Having one set of prohibited acts that relates to both drugs and alcohol/intoxicants together has made it difficult for the Bureau to effectively track the number of incident reports related solely to drugs or solely to alcohol/intoxicants.

We therefore propose to separate the one set of prohibited activities into two: one group of codes relating to drugs, and the other to alcohol/intoxicants. To accomplish this, we created four new prohibited act codes: 116, 117, 118, and 119. Codes 110 through 113 will now relate solely to drugs, and codes 116 through 119 will repeat the activities described in 110 through 113, but with regard to alcohol/intoxicants. The wording of the codes has not otherwise changed.

Combination of codes 114, 205, 206, 229, and 300, regarding non-consensual, sexually explicit conduct up to and including assault.

We propose to combine codes 114, 205, 206, 229, and 300 to clarify that the behavior we seek to prohibit encompasses additional non-consensual, sexually explicit conduct, including “sexual assault.” Instead, we propose to clarify that code 114 prohibits sexually explicit conduct involving force, threat of force, or threat of harm; or sexually explicit conduct without consent or through coercion; or attempts thereof. Revised code 114 would encompass sexually explicit conduct that staff have observed and instructed an inmate to cease.

In this code, we further define the term “sexually explicit conduct” as it is described in 18 U.S.C. 2256(2)(A): verbal or written sexual proposals or threats; actual or simulated sexual intercourse, including but not limited to genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; bestiality; masturbation; sadistic or masochistic abuse; or lascivious exhibition of the anus, genitals, or pubic area of any person.

There has been a general increase over several years in the occurrence of these prohibited acts, particularly as aimed at staff. This behavior, especially towards staff, rises to the greatest level of severity because it results in the existence of a sexually hostile work environment for staff. Accordingly, we seek to increase the severity level for these behaviors to underscore the level of seriousness of this conduct, to deter this type of activity, and to promote a healthy work environment for Bureau staff.

As conforming amendments, the Bureau proposes to delete codes 205 (engaging in sexual acts), 206 (making sexual proposals or threats to another), 229 (sexual assault of any person, involving non-consensual touching without force or threat of force), and 300 (indecent exposure) because the conduct those codes prohibit would be encompassed under revised code 114.

Addition of code 194, regarding unauthorized use of social media and fund transfer services.

We propose to add a Greatest Severity Level prohibited act code (194) for accessing, using, or maintaining social media accounts (including, but not limited to the following: Facebook, Twitter, Instagram, Snapchat, TikTok, etc. or any successor), or directing others to establish or maintain social media accounts on the inmate's behalf for the purpose of committing or aiding in the commission of a criminal act; of committing or aiding in the commission of any Greatest category prohibited act; or of circumventing authorized communications monitoring for the purpose of committing or aiding in the commission of a criminal act or of any Greatest category prohibited act. This code also prohibits inmates' use of fund transfer services such as CashApp, as explained in more detail below.

In determining whether the Bureau can restrict inmate access to social media accounts, the appropriate standard to consider is whether such a restriction is reasonably related to legitimate penological interests. See, e.g., Aguiar v. Recktenwald, No. 3:13-2616, 2015 WL 5829727, at *8 (M.D. Pa. Sept. 30, 2015) (citing Solan v. Zickefoose, 530 F. App'x 109, 110 (3d Cir. 2013), cert. dismissed, 134 S. Ct. 1499 (2014), reconsideration denied, 134 S. Ct. 1927 (2014) (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)). In Aguiar, the court articulated the Turner factors demonstrated by the Bureau's policy of restricting social media use by inmates, as follows:

Aguiar v. Recktenwald, 2015 WL 5829727, at *9. In addition, several states currently have provisions in law or policies prohibiting prisoners from accessing social media. See, e.g., Ala. Code 14-11-70 (2013); Texas Department of Criminal Justice Offender Orientation Handbook, Ch. 1, III. N., p. 24 (Apr. 2016); New Mexico Corrections Department Policy CD-044005, internet Use, page 5, M.1. (May 20, 2015); North Carolina Department of Public Safety, Prisons, Policy & Procedures, General, B.0300 Inmate Conduct Rules (y)(2) (July 10, 2013).

We further propose to include language necessary to enable the Bureau to target and eliminate inmates' use of fund transfer services like CashApp. When inmates use these services to send and receive money, Bureau staff are unable to monitor those transfers. CashApp and similar applications employ encryption technology that enables inmates to avoid detection, allowing them to use these platforms for unlawful purposes such as money laundering. Without the ability to closely monitor fund transfers using CashApp and similar applications, Bureau staff are unable to advise and assist other federal, state, and local law enforcement entities with identifying criminal or potentially criminal activity in which a particular inmate is engaged. Thus, inclusion of this language will provide us with a tool to disincentive an inmate's use of these fund transfer services and to hold inmates accountable for violating the prohibition against such use.

Addition of code 195, regarding use of video visits to commit or aid in the commission of a criminal act or any other Greatest category prohibited act.

We propose to add a Greatest Severity Level prohibited act code (195) for use of video visits to commit or aid in the commission of a criminal act or any other Greatest category prohibited act. The Bureau adds this code to account for advances in technology that have allowed for the use of video visiting by inmates as an alternative to telephonic communication and visiting room visitation. This code is necessary to discipline for infractions similarly to current code 196, “use of the mail for an illegal purpose or to commit or further a Greatest category prohibited act;” and 197, “use of the telephone for an illegal purpose or to commit or further a Greatest category prohibited act.”

Expansion of code 196, regarding use of the mail for an illegal purpose.

Current code 196 allows for discipline for use of the mail for an illegal purpose or to commit or further a Greatest category prohibited act. We propose to expand this code to include misuse of any form of electronic mail and messaging, including messaging through the TRULINCS system. The Bureau makes this addition to account for advances in technology that have allowed for the use of electronic mail by inmates as an alternative to written correspondence and telephone communication. This change is necessary to discipline for infractions similarly to current code 196, “use of the mail for an illegal purpose or to commit or further a Greatest category prohibited act;” and 197, “use of the telephone for an illegal purpose or to commit or further a Greatest category prohibited act.”

Clarification of code 201, regarding fighting.

We propose to modify this code to clarify that the term “fighting” is defined as a hostile physical or verbal encounter between two or more persons. This is more descriptive than the previous code description, which was simply “fighting with another person.” No other changes are made in the substance or application of this code.

Addition of code 202, regarding possession of forms used in fraudulent filing.

We propose to create a new code 202 prohibiting possession of any forms that may be used in the fraudulent filing of Uniform Commercial Code (UCC) liens and prohibiting any attempt to publicly disclose the private information of others for unlawful purposes.

For several years, inmates have been filing fraudulent liens against Bureau staff, typically alleging that a particular Bureau staff member is financially indebted to the inmate because of something the Bureau staff did or did not do. Inmates frequently file these liens under the purported authority of the UCC, which has been adopted by most states.

Under the UCC, a creditor files a financing statement with the required state office. This financing statement creates a lien. To remove the lien, the creditor must file a formal amendment. When Bureau legal staff learn that a lien has been filed against a staff member, they file a demand letter requesting to have the lien removed. If the inmate refuses to remove the lien, the Bureau staff may file a document contesting the lien. Specifically, the UCC provides a debtor the opportunity to file a correction on a record that is believed to be inaccurately or wrongfully filed. The filing of a correction statement does not invalidate the original financing statement but does serve to alert anyone searching the records for the debtor's name that this financing statement is contested.

Filing fraudulent liens or attempting to disclose the private information of others is prohibited by the Court Security Improvement Act of 2007 (Pub. L. 110-177, Jan. 7, 2008). That Act added two new provisions to the Federal Criminal Code: 18 U.S.C. 1521, which established a criminal offense for filing, attempting to file, or conspiring to file, a false lien or encumbrance against the real or personal property of a Federal Judge or Federal law enforcement officer; and 18 U.S.C. 119, which established a criminal offense for making publicly available “restricted personal information” about a covered person” with the intent to threaten, intimidate, or incite a crime of violence against such person. Such information, as defined in that section, includes an individual's Social Security number, home address, home phone number, mobile phone number, personal email, or home fax number. The definition of “covered persons” in 18 U.S.C. 119(b)(2) includes court officers, jurors, witnesses, informants, and Federal law enforcement officers, which includes Bureau of Prisons staff.

The Bureau's current regulations explain, in 28 CFR 500.1(h), that contraband is material prohibited by law, regulation, or policy that can reasonably be expected to cause physical injury or adversely affect the safety, security or good order of the facility or protection of the public. The filing of fraudulent liens and the possession of documents that contain another's restricted personal information impacts the security and good order of Bureau facilities.

Federal courts have upheld prohibition of UCC forms and documents related to UCC filings, as contraband. For instance, in Edmonds v. Sobina, 296 F. App'x 214 (3d Cir. 2008), the court held that discipline imposed upon a federal inmate in unauthorized possession of UCC filing forms did not implicate any constitutionally protected liberty interest. 296 F. App'x 217-18. The court upheld the Bureau's policy of restricting possession of such items as contraband, indicating that this restriction did not violate the inmate's First Amendment right to possess legal materials. Id.; see also Monroe v. Beard, 536 F.3d 198 at 207-09 (3d Cir. 2008) (upholding Pennsylvania DOC prohibition of UCC forms, indicating that possession of such forms “demonstrates the considerable `ripple effect' that accommodating the plaintiff's right to possess these items may have on DOC resources and on guards and DOC employees if other inmates were to successfully file false liens.”); Dantzler v. Beard, No. 09-275, 2010 WL 1008294, *10 (W.D. Pa. Mar. 15, 2010) (Pennsylvania Department of Corrections confiscation of an inmate's UCC materials “did not violate his procedural due process rights because, as a matter of law, Plaintiff has no property rights in UCC materials.”); Lawson v. Stephens, No. 7:15-173, 2018 WL 10731584, at *1 (N.D. Tex. June 22, 2018) (Texas Department of Correction policy restricting inmate possession of UCC materials “does not violate plaintiff's First Amendment right to possess legal materials . . . .”); Torres v. Fla. Dep't of Corr., 742 F. App'x 403 (11th Cir. 2018) (Florida Department of Corrections “rule permitting confiscation of inmate's UCC forms was reasonably related to legitimate penological interest in preventing prisoners from filing fraudulent UCC liens, and thus the rule did not violate inmate's First Amendment rights.”).

Additionally, in United States v. Martin, 356 F. Supp. 2d 621 (W.D. Va. 2005), the court held that imposition of a permanent injunction barring federal inmates from filing financing statement or liens without prior court approval was warranted, where inmates had filed meritless financing statements against federal judges and Bureau officials for purpose of intimidation and harassment, and where inmates continued to try to file liens against other federal officials involved in their cases after the government filed suit. Id. at 628-29.

For these reasons, the Bureau now proposes to prohibit inmate possession of any forms that may be used in the fraudulent filing of UCC liens and any attempt to publicly disclose the private information of others for unlawful purposes.

Clarification of code 203, regarding threatening.

Current code 203 prohibits threatening another with bodily harm or any other offense. The Bureau now proposes to modify this code to clarify the prohibited conduct as communicating an intent to jeopardize the safety, security, and orderly operation of a Bureau facility, protection of the public, or the person or property of another. No substantive or application changes are made to this code.

Clarification of code 204, regarding extortion and blackmail.

Current code 204 prohibits extortion; blackmail; protection; demanding or receiving money or anything of value in return for protection against others, to avoid bodily harm, or under threat of informing. The Bureau now proposes to modify this code to clarify the prohibited conduct as extortion, blackmail, or otherwise demanding or receiving anything of value using actual or threatened force, violence, fear, or intimidation. No change is made to the substance or application of this rule.

Reservation of code 205, regarding sexual acts.

We propose to delete this code as explained above.

Reservation of code 206, regarding making sexual proposals or threats to another.

We propose to delete this code as explained above.

Addition of code 210, regarding possession of sexually explicit material.

We propose to create a new code 210 prohibiting possession of sexually explicit material. Possession of sexually explicit and sexually provocative images, writings, or other materials can pose a danger to the security of the institution. Also, the presence of these materials in Bureau facilities creates a sexualized work environment, which is potentially disturbing to staff conducting routine searches of inmate property. This is particularly a concern when inmates openly display sexually provocative images in their cells. Furthermore, this is also a concern for inmates under specific correctional management plans relating to sexual offenses or under treatment for disorders related to sexual dysfunction, as ongoing possession of sexually explicit images or documents is a risk factor for recidivism and counterproductive to rehabilitation.

Current Bureau regulations in 28 CFR part 540 prohibit inmates from receiving sexually explicit material. See, e.g., 28 CFR 540.14(d)(7) (correspondence may be rejected if it is “[s]exually explicit material (for example, personal photographs) which by its nature or content poses a threat to an individual's personal safety or security, or to institution good order . . .”); 28 CFR 540.71(b)(7) (an incoming publication may be rejected if it “is sexually explicit material which by its nature or content poses a threat to the security, good order, or discipline of the institution, or facilitates criminal activity.”).

Additionally, 28 CFR 540.72 explains the statutory restriction requiring return of commercially published information or material that is sexually explicit or features nudity. This derives from repeated Congressional mandates against making such information or material available to inmates. See 18 U.S.C. 4042 note (“Sexually Explicit Commercially Published Material”). 2 In section 540.72(b)(4), “sexually explicit” is defined as “a pictorial depiction of actual or simulated sexual acts including sexual intercourse, oral sex, or masturbation.”

As indicated above in relation to revised code 114, the Bureau recognizes the definition of “sexually explicit conduct” in 18 U.S.C. 2256(2)(A), which is as follows:

(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;

(ii) bestiality;

(iii) masturbation;

(iv) sadistic or masochistic abuse; or

(v) lascivious exhibition of the anus, genitals, or pubic area of any person;

As indicated, the Bureau defines “materials” as any pictorial depiction, to include photos, drawings, digitally or computer-manipulated image, or other visual depictions ( i.e., collages, posters). Therefore, this code seeks to prohibit inmate possession of visual depictions of actual or simulated sexual intercourse, bestiality, masturbation, sadistic or masochistic abuse, or lascivious exhibition of the anus, genitals, or pubic area of any person.

By adding this code, we seek to reduce currently prohibited behaviors to clarify that the possession of sexually explicit material poses a potential harm to staff by creating and maintaining a sexually hostile work environment, and to the community when sexual offenders persist in conduct contrary to rehabilitation goals.

Combination of current code 212, regarding group demonstrations; current High Severity Level code 213, encouraging others to refuse to work or to participate in a work stoppage; and current Moderate Severity Level code 336, circulating a petition.

We propose to combine current code 212, regarding group demonstrations, current High Severity Level code 213, encouraging others to refuse to work or to participate in a work stoppage, and current Moderate Severity Level code 336, circulating a petition. Each of these codes describes prohibited conduct which may be described as participating in or promoting others to participate in unauthorized conduct as a group. Therefore, we propose to create a new code 212, which would prohibit participating or promoting others to participate with two or more persons in unauthorized behavior, whether planned or unplanned (including, but not limited to, unauthorized work stoppage or refusal to work or eat, group demonstrations, sit-ins, creating or circulating a petition, etc.).

Prohibiting participation by two or more inmates in authorized behavior, such as circulating petitions, for instance, to maintain control over group activity by prisoners is a reasonable response to a legitimate penological concern. See Duamutef v. O'Keefe, 98 F.3d 22, 24 (2d Cir. 1996) (explaining that as long as individual grievance procedures are available, prisons may bar circulation of petitions); Wolfel v. Morris, 972 F.2d 712, 716 (6th Cir. 1992) (“[I]t seems clear that a prison does not violate a prisoner's rights by refusing to allow circulation of petitions.”). If the group behavior is coupled with a demonstrated and evidenced threat to the safety, security, or good order of the facility or protection of the public, the penological concern is heightened and the necessity of disciplining such activity is even greater.

The appropriate, legally authorized method for inmates to formally grieve prison conditions is through the Administrative Remedy Program, described in 28 CFR part 542. Under this Program, every inmate can raise individual complaints and receive three levels of review (at the institution, Region, and Central Office levels).

Inmate petitions, group demonstrations, sit-ins, and other such group behavior are prohibited because these behaviors involve multiple inmates with goals of contravening prison operations and management, and as such, these activities pose a special risk of disruption that does not exist through the sanctioned, individual administrative remedy complaint system. Such unauthorized group conduct threatens the safety, security, and good order of the facility and the protection of the public. This behavior not only poses serious security risks, but also undermines the effectiveness and legitimacy of the Administrative Remedy Program

Clarification of code 216, regarding giving or offering an official or staff member a bribe, or anything of value.

We propose to make a minor modification to this code to clarify that the prohibited conduct is giving or offering a staff member something of value to persuade or induce favor or action, not simply giving anything of value without such an expectation. This is a more accurate statement of the problematic conduct. We do not propose to make substantive or application changes to this code.

Clarification of code 218, regarding destroying property.

Currently, code 218 prohibits destroying, altering, or damaging government property, or the property of another person, having a value in excess of $100.00, or destroying, altering, damaging life-safety devices ( e.g., fire alarm) regardless of financial value. We propose to make minor edits to the language of this code to clarify that the prohibited conduct is destroying, altering, or damaging any of the following: property valued over $100.00 belonging to the government or another person; or property necessary for the protection of life and/or safety ( e.g., fire alarms), regardless of financial value. This proposal does not make substantive changes or changes in application of the code.

Modification of code 219, regarding stealing and theft (including data obtained through the unauthorized use or access to any media or equipment on which electronic data is stored).

We propose to modify High Severity Level prohibited act code 219 regarding stealing and theft to include theft of data obtained through unauthorized use or access to any media or equipment on which electronic data is stored. Inmates have previously been able to compromise certain electronic storage systems to obtain unauthorized information to “check the paperwork” of other inmates— i.e., to find out confidential information about another inmate for the purpose of targeting that inmate based on that confidential information. Targeting of other inmates based on this confidential information, in turn, presents safety and security concerns for inmates and staff due to the possibility of violence or other unlawful acts being committed upon the inmate whose confidential information was stolen.

Modification of code 221, regarding being in an unauthorized area with a person of the opposite sex without staff permission.

We propose to modify the High Severity Level prohibited act code 221, being in an unauthorized area with a person of the opposite sex without staff permission, to clarify that inmates will be disciplined for being in an unauthorized area without staff permission with any other person, regardless of sex. This is a more accurate statement of the prohibited conduct and will not change the application of this code.

Modification of code 224, regarding assault that does not involve serious physical injury.

Currently, this code prohibits assaulting any person, but also contains a parenthetical explanation that the code should only be used when “less serious physical injury or contact has been attempted or accomplished.” Rather than leave it to the discretion of staff to determine whether injuries are “less serious,” we propose to modify this code to prohibit an assault of any person that does not involve serious physical injury, including non-consensual touching.

We also propose this modification to more clearly distinguish the behavior prohibited by this code, which is in the High Severity Level category, from the proposed revision to Greatest Severity Level code 101, which prohibits assault and/or battery of any person involving serious physical injury, or an armed assault on the institution's secure perimeter.

The revised code 224 also prohibits non-consensual touching, which is currently encompassed by code 229, sexual assault of any person, involving non-consensual touching without force or threat of force. Code 229 will be reserved, as this prohibited conduct is proposed to be encompassed by revised code 224 and possibly revised code 114.

Modification of code 228, regarding tattooing or self-mutilation.

We propose to modify the High Severity Level prohibited act code 228, tattooing or self-mutilation, to clarify that inmates will be disciplined for body modification, including but not limited to tattooing and piercing, and possession of any paraphernalia and/or tools for the use of any form of body modification. The code description will also include the caveat that this code shall not be applied to acts of self-directed violence ( e.g., cutting).

This addition reflects the seriousness of the conduct, the disruptive nature of possession of such items, and the potential health concerns resulting from improper use. However, we also add the caveat that this code is not to be used in any instance involving self-directed violence or harm. This clarification reflects the Bureau's recognition that an inmate's mental health symptoms, including acute symptoms of withdrawal from drugs or other addictive substances, should not result in disciplinary sanctions.

Reservation of code 229, regarding sexual assault of any person, involving non-consensual touching without force or threat of force.

We propose to delete this code as explained above.

Addition of code 230, regarding possession and/or use of tobacco or related paraphernalia.

Currently, code 331 allows for discipline for possession, manufacture, introduction, or loss of a non-hazardous tool,” including “ smoking apparatus and tobacco in any form where prohibited . . . ” [Emphasis added]. We propose to remove the phrase “smoking apparatus and tobacco in any form where prohibited” and transfer it into new code 230. We also propose to clarify that smoking apparatus and tobacco in any form may include, but is not limited to, such items as vape devices and other non-conventional forms of delivery.

Increasing the severity level of possession and/or use of tobacco or related paraphernalia underscores the seriousness of the offense. This is necessary because since the last revision of the prohibited act codes, 28 CFR 551.163 codified the prohibition of possession of smoking apparatus and tobacco in any form, unless as part of an authorized religious activity. Furthermore, since the last revision of this code, the use of alternate forms of delivery, such as vape pens, has become more prevalent among inmates in Bureau facilities, leading to further introduction of this type of prohibited contraband and increased security issues.

Modification of code 231, regarding requesting, demanding, pressuring, or otherwise intentionally creating a situation, which causes an inmate to produce or display his/her own court documents for any unauthorized purpose to another inmate.

We propose to make two modifications to code 231. We first propose to amend the language of the offense code to more accurately focus on the coercive behavior involved when an inmate seeks to obtain another inmate's personal court documents and information for unauthorized purposes. We also propose to include language clarifying that some documents beyond “court documents” should be included as part of this code. Sensitive information about a particular inmate (including Walsh Act information) may appear on court documents or on non-court documents, including, but not limited to, PATTERN scoresheets. We therefore propose to revise the code to clarify that the prohibited conduct is requesting, demanding, pressuring, or otherwise creating a situation that causes an inmate to produce or display their own court documents or other documents ( e.g., PATTERN scoresheets) that contain information about the inmate's current or prior offense(s) for any unauthorized purpose to another inmate.

Addition of code 232, regarding introduction of any unauthorized non-hazardous item or contraband.

We propose to add a new High Severity Level prohibited act code 232, to underscore the seriousness of introducing unauthorized items ( i.e., contraband) into a correctional setting. Introduction of unauthorized items cannot be monitored for their potential in creating a hazardous environment for both staff and inmates; even seemingly harmless, non Bureau-purchased items like cosmetic products or cleaning supplies may contain harmful chemicals or other dangerous substances that pose health, safety, and security risks to all individuals within the correctional setting.

Another institutional security consideration involves the unintended consequences of introduction of certain contraband into a correctional facility, including the creation or perpetuation of an unauthorized series of financial transactions. One example includes an inmate obtaining cosmetic items and dietary supplements and then marking up the price substantially to sell to other inmates who are unable to purchase such items through the official commissary. Then, the inmate who purchases the contraband from another inmate may owe a debt, which, if left unpaid, can create the precise type of volatile situation that may cause violence to erupt and risk the safety of both inmates and staff.

This new code is designed to thwart contraband introduction and minimize the risks to the health and safety of Bureau inmates, staff, and members of the public.

Addition of code 235, regarding communicating gang affiliation, participating in gang-related activities, and possession of paraphernalia indicating gang affiliation.

We propose to increase the severity level of current code 335, communicating gang affiliation, participating in gang-related activities, or possession of paraphernalia indicating gang affiliation, from the Moderate Severity Level category to the High Severity Level category. This change is proposed to underscore the seriousness of the offense, as the existence of gangs jeopardizes the safety, security, and good order of Bureau facilities.

Addition of code 294, regarding unauthorized use of social media.

We propose to create a new High Severity Level prohibited act code (294) for accessing, using, or maintaining social media, or directing others to establish or maintain social media accounts on the inmate's behalf (including, but not limited to the following: Facebook, Twitter, Instagram, Snapchat, TikTok, etc. or any successor). In contrast to proposed code 194, code 294 acts will not involve commission or aid in the commission of any criminal act or any Greatest category prohibited act.

Addition of code 295, regarding use of video visits for abuses other than criminal activity.

We propose to create a new High Severity Level prohibited act code which prohibits use of video visits for abuses other than criminal activity, including, but not limited to, conduct that circumvents established video visit session monitoring procedures; conduct that permits communication with individuals other than the authorized visitors; conduct that would be unauthorized if it were to occur in an in-person visiting room; or use of the video session to commit or further another High category prohibited act.

We propose the addition of this code to deter abuses of any video visiting system in place at a Bureau facility, such as sharing passwords, not logging off the system, nudity; and/or use of visual and/or verbal communicated actions by the inmate or approved contact such as hand/body gestures outside of general sign language. General sign language is not limited to American Sign language and includes “home signs”— i.e., communicative gestures invented or created by a Deaf person within their own family—as well as other visual or tactual communication forms that might be used by certified Deaf interpreters or other individuals who are Deaf or Hard of Hearing. General sign language does not include gang signs/signals, sexual acts/gestures/innuendos, prohibited substance/drug use, etc.

The Bureau adds this code to account for advances in technology that have allowed for the use of video visiting by inmates as an alternative to telephonic communication and visiting room visitation. This code is necessary for infractions similar to those addressed by codes 296 and 297, which address similar conduct for use of the mail and telephone for such abuses “other than criminal activity which circumvent” monitoring or to “commit or further a High category prohibited act.”

Expansion of code 296, regarding use of the mail for abuses other than criminal activity.

Current code 296 allows for discipline for use of the mail for abuses other than criminal activity that circumvent mail monitoring procedures ( e.g., use of the mail to commit or further a High category prohibited act, special mail abuse; writing letters in code; directing others to send, sending, or receiving a letter or mail through unauthorized means; sending mail for other inmates without authorization; sending correspondence to a specific address with directions or intent to have the correspondence sent to an unauthorized person; and using a fictitious return address in an attempt to send or receive unauthorized correspondence).

We propose to expand this code to include misuse of any form of electronic mail and messaging, including, but not limited to, messaging through the TRULINCS system. The Bureau makes this addition to account for advances in technology that have allowed for the use of electronic mail by inmates as an alternative to written correspondence and telephone communication. This change is necessary to discipline for infractions similarly to current code 296, and 297, “Use of the telephone for abuses other than illegal activity which circumvent the ability of staff to monitor frequency of telephone use, content of the call, or the number called; or to commit or further a High category prohibited act.”

Reservation of code 300, regarding indecent exposure.

We propose to delete this code as explained above.

Clarification of code 313, regarding lying or providing a false statement to a staff member.

We propose to modify this code to clarify that the prohibited conduct is providing a false statement to a staff member and includes feigning illness. This is a more accurate description of the prohibited behavior. Adding feigning illness to this code will serve to deter false inmate reports of illness, which not only subvert the inmate's rehabilitative programming requirements, but also have the potential to unnecessarily burden both staff and medical professionals and cause unnecessary expenditures.

Combination of code 324, regarding gambling, with code 325, preparing and conducting a gambling pool, and code 326, possession of gambling paraphernalia.

We propose to combine these three codes into one code 324, describing the prohibited conduct as gambling, possession of gambling paraphernalia, or preparing or conducting a gambling pool. The previous separation of these three types of conduct was unnecessary, as the conduct described is interconnected.

Clarification of code 331 to remove reference to smoking “where prohibited.”

Currently, code 331 prohibits possession, manufacture, introduction, or loss of a non-hazardous tool, equipment, supplies, or other non-hazardous contraband (tools not likely to be used in an escape or escape attempt, or to serve as a weapon capable of doing serious bodily harm to others, or not hazardous to institutional security or personal safety) (other non-hazardous contraband includes such items as food, cosmetics, cleaning supplies, smoking apparatus and tobacco in any form where prohibited, and unauthorized nutritional/dietary supplements)” [Emphasis added].

We propose to remove the phrase “smoking apparatus and tobacco in any form where prohibited” and increase the severity level of this prohibited conduct to create High Severity code 230. We also eliminate/delete code 332—Smoking where prohibited, because smoking apparatus is prohibited and smoking is functionally disallowed for inmates unless part of an authorized religious activity. See 28 CFR 551.162-.163.

We also propose to streamline the conduct description in this code to prohibit possession, manufacture or loss of a non-hazardous item or contraband, further explaining in the parenthetical that the term “non-hazardous item or contraband” includes, but is not limited to, items not likely to be used in an escape; items not likely to serve as a weapon capable of doing serious bodily harm to others; items not hazardous to institutional security or personal safety; unauthorized food, cosmetics, cleaning supplies, and unauthorized nutritional/dietary supplements.

Reservation of code 332, regarding smoking where prohibited.

We propose to delete this code as explained above.

Reservation of code 335, regarding communicating gang affiliation; participating in gang related activities; possession of paraphernalia indicating gang affiliation.

We propose to delete this code as explained above.

Addition of code 337, increasing severity level for code 404, regarding using abusive or obscene language.

We propose to increase the severity level of Low Severity Level code 404, using abusive or obscene language, to Moderate Severity Level prohibited act code 338. This code will be moved to the 300 level because, as will be explained below, we propose to eliminate the Low Severity Level prohibited act code (400) series entirely. We note that this code does not apply to use of abusive or obscene language uttered or written by an inmate with a relevant disability ( e.g., Tourette Syndrome).”

Addition of code 338, increasing severity level for codes 407 & 409, regarding conduct with a visitor in violation of Bureau regulations and unauthorized physical contact (e.g., kissing, embracing).

We propose to increase the severity level of Low Severity Level code 407 and 409 for inappropriate conduct in the visiting room. These codes would combine to become Moderate Severity Level prohibited act code 338, “unauthorized conduct in the visiting room ( e.g., kissing, embracing, etc.).” Also, as explained below, we propose to eliminate the Low Severity Level prohibited act code (400) series entirely. These changes will be further explained below.

Addition of electronic mail to code 396, regarding use of the mail for abuses other than criminal activity.

Current code 396 allows for discipline for use of the mail for abuses other than criminal activity that do not circumvent mail monitoring; or use of the mail to commit or further a Moderate category prohibited act. We propose to add “electronic mail” to this code to account for advances in technology that have allowed for the use of electronic mail by inmates as an alternative to written correspondence and telephone communication. The term “electronic mail” shall include any form of electronic mail and messaging, including, but not limited to, messaging through the TRULINCS system. This change is necessary for infractions similar to those addressed by code 396, for misuse of the mail.

Reservation of code 397, regarding use of the telephone for abuses other than illegal activity which do not circumvent the ability of staff to monitor frequency of telephone use, content of the call, or the number called; or to commit or further a Moderate category prohibited act.

We propose to delete this prohibited act code because it has been misused to prohibit conduct that actually has already circumvented the ability of staff to monitor telephone use, rather than activity that has the potential to circumvent monitoring.

This code had been misunderstood as a less-severe version of code 297, which allows for discipline of conduct that circumvents monitoring for an illegal purpose. Inmates have been identified as having committed prohibited acts that would result in circumvention of telephone monitoring but did not actually result in circumvention of monitoring. These inmates were then downgraded or shown leniency by being charged with a 397-level code instead of the appropriate 297-level code. For this reason, we eliminate the 397 code to avoid confusion and to clarify that inmates should be disciplined for any conduct that may circumvent the ability of staff to monitor communications, regardless of whether monitoring is actually circumvented.

Reservation of the Low Severity Level prohibited act codes (400 series).

We propose to delete the Low Severity Level prohibited act code (400) series entirely. Currently, there are six active codes listed, which we propose to remove for the following reasons:

“402 Malingering, feigning illness.” We propose to remove this prohibited act code because malingering does not typically require disciplinary action. However, because feigning an illness equates to lying or providing a false statement to a staff member, we have incorporated that portion of this code into code 313 above.

“404 Using abusive or obscene language.” As described earlier, we propose to increase the severity level of Low Severity Level code 404, using abusive or obscene language, to Moderate Severity Level prohibited act code 337. Further, because we have significantly reduced the level of disciplinary segregation sanction that may be imposed for the Moderate Severity Level prohibited act codes, it must be noted that moving this conduct from the “Low” to the “Moderate” category does not change the severity of potential sanctions that may be imposed. Further, staff will be instructed that the inmate's level of misconduct must be greater than that previously triggering an incident report for a “Low” prohibited act code.

“407 Conduct with a visitor in violation of Bureau regulations” and “409 Unauthorized physical contact ( e.g., kissing, embracing).” As described earlier, we propose to increase the severity level of Low Severity Level code 407 and 409 for inappropriate conduct in the visiting room. These codes would combine to become Moderate Severity Level prohibited act code 338, “unauthorized conduct in the visiting room ( e.g., kissing, embracing, etc.).”

Because we have significantly reduced the level of disciplinary segregation sanction that may be imposed for the Moderate Severity Level prohibited act codes, it must be noted that moving this conduct from the “Low” to the “Moderate” category does not change the severity of potential sanctions that may be imposed. Because we increase the seriousness of the offense, staff will be instructed that the inmate's level of misconduct must be greater than that previously triggering an incident report for either of the two previous 400-level “Low” prohibited act codes.

“498 Interfering with a staff member in the performance of duties most like another Low Severity prohibited act” and “499 Conduct which disrupts or interferes with the security or orderly running of the institution or the Bureau of Prisons most like another Low Severity prohibited act.” Both of these codes indicate that they are “to be used only when another charge of Low Severity is not accurate. The offending conduct must be charged as `most like' one of the listed Low Severity prohibited acts.” We propose to eliminate these codes because they are vague and because the conduct described is more accurately specified by other codes listed in the Greatest, High, and Moderate Severity prohibited act codes.

Because we propose to delete the Low Severity Level, we likewise propose to delete language relating to the Low Severity Level in Table 2 to § 541.3—Additional Available Sanctions for repeated Prohibited Acts Within the Same Severity Level.

Modifications to the disciplinary segregation sanction.

In the mid-2000s, the Bureau experienced a spike in prison violence, including the murder of a correctional officer. In response, the Bureau implemented several additional measures, including harsher penalties for inmates who violated disciplinary rules. In particular, this approach resulted in regulation changes that increased the length of maximum possible time for the penalties of disciplinary segregation time (75 FR 76263, December 8, 2010; effective on March 1, 2011).

Maximum terms of segregation under current Bureau regulations are as follows:

After 2011, the Bureau experienced a decline in its restrictive housing population, which coincided with a reduction in inmate-on-staff assaults at Bureau facilities. The chart below compares the number of inmates in segregation to the total prison population between January 2012 and August 2021, illustrating the decline in restrictive housing population.

As a result of the decline in imposition of the disciplinary segregation sanction, the Report recommended that the Bureau reduce the maximum time an inmate can be placed in segregation as a sanction for a disciplinary infraction. The Report recommended elimination of the disciplinary segregation sanction for all 400-level prohibited acts, and for an inmate's first adjudicated violation of all 300-level prohibited acts, and that the Bureau reclassify some 300-level prohibited acts as 200-level acts due to the more serious nature of these offenses. The following chart illustrates the recommendations of the Report:

Therefore, the Bureau now proposes that maximum penalties for disciplinary segregation sanctions for Greatest, High, and Moderate prohibited act codes be decreased as suggested in the Report (see chart above). This would effectively undo the change to disciplinary segregation sanction maximums made by the final rule of 2011.

This change would result in changes to 28 CFR 541.3, Table 1 to § 541.3—Prohibited Acts and Available Sanctions, in the “Available Sanctions” listed for each severity level prohibited acts category. The disciplinary segregation sanction is listed in each “Available Sanctions” sub-table as item C. and would be modified according to the chart shown above. Likewise, 28 CFR 541.3 Table 2 to § 541.3—Additional Available Sanctions for Repeated Prohibited Acts Within the Same Severity Level, would be similarly modified to reflect the chart shown above.

Changes to Loss of Privilege Sanctions.

In 28 CFR 541.3 Table 1 to § 541.3—Prohibited Acts and Available Sanctions, each severity level of prohibited act codes is followed by a table listing available sanctions that may be imposed on inmates if they are found to have committed those acts by DHOs. One such sanction found in each table is the “loss of privileges” sanction. In each “available sanctions” list, the “loss of privileges” sanction is followed by a descriptive parenthetical, as follows: “Loss of privileges ( e.g., visiting, telephone, commissary, movies, recreation).”

We now propose to add to that descriptive parenthetical the following additional examples of privileges that may be removed as a potential sanction: video visits, electronic device(s), and the use of electronic mail and messaging of any kind, including, but not limited to, through the TRULINCS system. We add these terms to accommodate advances in technology and to clarify that the Bureau views these items as privileges for inmates. However, the Bureau emphasizes that none of these sanctions should affect an inmate's right to counsel and the ability of an inmate to meet or otherwise communicate with counsel. Accordingly, the Bureau clarifies that no employee may impose as a sanction any measure whatsoever that restricts an inmate's right of access to counsel.

Amendments to Table 2 to § 541.3—Additional Available Sanctions for Repeated Prohibited Acts Within the Same Severity Level.

In addition to eliminating references to Low Severity Level (400-series) prohibited acts as described above, we propose the following changes to Table 2: First, we propose to change second column heading from “Time period for prior offense (same code)” to “Time period for Prior Offense (same severity level).” We make this change because it has been misinterpreted as applying only to commission of the same specific code conduct. Instead, the application is intended to apply to commission of any prior offense within the same severity level as the first or second offense. In other words, if an inmate was found to have violated code 396, some staff mistakenly assumed that if the same inmate then violated code 334, the available sanctions in the table would not apply. This proposed change is meant to clarify that if an inmate is found to have committed a prohibited act in any severity level, and then commits any other prohibited act within the same severity level, whether it is the same actual code number or not, the inmate may be subject to additional sanctions for this additional prohibited conduct.

Second, we modify the time periods for additional available sanctions in each severity level to decrease the amount of disciplinary segregation time, as described above.

Third, to correct an oversight in changes made to conform to the requirements of the First Step Act of 2018, we amend Table 2 to indicate that if an inmate commits the same Moderate Severity Level (300-series) offense, thereby violating the same prohibited act code within six months, up to seven days of FSA Earned Time Credits may be forfeited; and if an inmate commits a third violation of the same Moderate Severity Level prohibited act code within six months, the inmate may forfeit up to fourteen days of FSA Earned Time Credits. This amendment is consistent with the Bureau's regulations regarding FSA Earned Time Credit, as published at 87 FR 2705 (Jan. 19, 2022). No substantive changes are made to the sanctions as published in that regulation; rather, language relating to subsequent offenses of the same prohibited act code has been moved from Table 1 to Table 2, which is the correct location.

Amendments to 28 CFR 541.5, regarding the discipline process.

Currently, 28 CFR 541.5(a), describing the incident report, explains that the disciplinary process begins when staff reasonably believe the inmate has committed a prohibited act. We make a minor stylistic edit to the language regarding the composition of the incident report but make no substantive changes to this section. Likewise, we make similar stylistic edits to language in subparagraph (b) describing the investigation process, but do not change the substance of this regulation, or its application.

Amendments to 28 CFR 541.7, regarding unit discipline committee review.

We propose to clarify when the Unit Discipline Committee (UDC) will review the incident report. Currently, 28 CFR 541.7(c) indicates that the UDC ordinarily reviews the incident report “within five work days after it is issued, not counting the day it was issued, weekends, and holidays.” Inmates and staff found that description confusing and problematic, due to disparity between the time staff become aware of incidents and when incident reports are actually issued. At times, incident reports cannot be issued immediately for various reasons, including time and attention needed to resolve the situation that led to the incident in question.

Therefore, we propose to clarify that the UDC will ordinarily review the incident report within five work days “after the day staff become aware of the inmate's involvement in the incident, not counting the day staff became aware of the inmate's involvement, weekends, or holidays.” This will result in more immediate action and less confusion regarding discipline.

We also propose to make a minor change to 28 CFR 541.7(f), to clarify that the UDC may not impose monetary restitution as a sanction for inmate disciplinary infractions. Subparagraph (f) of 28 CFR 541.7 currently indicates that the UDC may impose “any of the available sanctions listed in Tables 1 and 2, except loss of good conduct sentence credit, disciplinary segregation, or monetary fines.” We propose to add “monetary restitution” to this list in order to clarify for staff that this is a sanction that may only be imposed at the DHO level. This is not a change to current practice or the substance of regulation, but rather a technical correction.

Clarification of 28 CFR 541.8, regarding hearings by Discipline Hearing Officers.

We make a minor change to the language of 28 CFR 541.8(a)(3) to clarify that the incident report may be referred back to the UDC for further investigation, review, disposition, or other action as recommended or necessary. This more accurately states the purpose of this section, but makes no substantive changes or changes in application.

The Department has determined that this rulemaking is a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, but it is not a section 3(f)(1) significant action. Accordingly, this proposed rule has been submitted to the Office of Management and Budget (“OMB”) for review. This proposed rule has been drafted and reviewed in accordance with Executive Order 12866, “Regulatory Planning and Review,” section 1(b), Principles of Regulation; in accordance with Executive Order 13563, “Improving Regulation and Regulatory Review,” section 1(b), General Principles of Regulation, and in accordance with Executive Order 14094, “Modernizing Regulatory Review”.

This proposed rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988, “Civil Justice Reform.”

This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on distribution of power and responsibilities among the various levels of government. Therefore, under Executive Order 13132, we determine that this regulation does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

The Director of the Bureau of Prisons, under the Regulatory Flexibility Act (5 U.S.C. 605(b)), reviewed this regulation and certifies that it will not have a significant economic impact upon a substantial number of small entities for the following reasons: This regulation pertains to the correctional management of inmates committed to the custody of the Attorney General or the Director of the Bureau of Prisons. Its economic impact is limited to the Bureau's appropriated funds.

Since January 2012, the Bureau has reduced the total number of inmates in restrictive housing by nearly 25 percent. The Department estimates that the changes made by this proposed rule will result in additional substantial reductions in the Bureau's restrictive housing population. Although it is impossible to quantify the exact size of the future reductions, the Department notes that other state and local correctional systems implementing reforms, including those jurisdictions discussed earlier in this Report, have reported reductions in their restrictive housing populations in recent years by nearly 50 percent or more.

This regulation will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by 5 U.S.C. 804 of the Congressional Review Act. This regulation will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

Under rulemaking authority vested in the Attorney General in 5 U.S.C. 301; 28 U.S.C. 509, 510 and delegated to the Director, Bureau of Prisons, we propose to amend 28 CFR part 541 as follows:

Invitation to Comment: We invite you to submit comments regarding the proposed priorities, requirements, and definition. To ensure that your comments have maximum effect in developing the final priorities, requirements, and definition, we urge you to identify clearly the specific section of the proposed priorities, requirements, and definition that each comment addresses.

We invite you to assist us in complying with the specific requirements of Executive Orders 12866, 13563, and 14094 and their overall requirement of reducing regulatory burden that might result from these proposed priorities, requirements, and definition. Please let us know of any further ways we could reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the program.

During and after the comment period, you may inspect public comments about the proposed priorities, requirements, and definition by accessing Regulations.gov . To inspect comments in person, please contact one of the persons listed under FOR FURTHER INFORMATION CONTACT .

Assistance to Individuals with Disabilities in Reviewing the Rulemaking Record: On request we will provide an appropriate accommodation or auxiliary aid to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for these proposed priorities, requirements, and definition. If you want to schedule an appointment for this type of accommodation or auxiliary aid, please contact the person listed under FOR FURTHER INFORMATION CONTACT .

Purpose of Program: The Hawkins Program, authorized under part B of title II of the Higher Education Act of 1965, as amended (HEA), is designed to support comprehensive, high-quality State-accredited teacher preparation programs by creating centers of excellence at Historically Black Colleges and Universities (HBCUs); Tribal Colleges or Universities (TCUs); or Minority Serving Institutions (MSIs), such as Hispanic-Serving Institutions (HSIs). The Hawkins Program will help increase the number of, and retain, well-prepared teachers from diverse backgrounds, resulting in a more diverse teacher workforce prepared to teach in our Nation's highest-need elementary and secondary schools and close student opportunity and achievement gaps. This program focuses on the various aspects of the teacher preparation pipeline, including the recruitment, preparation, support, placement, and retention and retraining of teachers for and in high-need schools to support underserved students. Through this program, the Secretary seeks to fund applicants that propose to incorporate evidence-based practices into their teacher preparation program.

Program Authority: 20 U.S.C. 1033-1033a.

Background: There is significant inequity in students' access to well-prepared, experienced, and effective teachers, 1 particularly for students from low-income backgrounds, students of color, children or students with disabilities, and English learners (ELs). 2 Providing all students with consistent access to a well-prepared, effective, and diverse educator workforce who provide high-quality instruction and support to all children and youth is essential to closing opportunity and achievement gaps. Teachers who entered the profession through the least comprehensive teacher preparation pathway are two to three times more likely to leave their school or the profession compared to those who entered through a comprehensive pathway. 3 Research demonstrates that high rates of turnover harm student achievement, 4 and that the quality of a school's leadership is among the most important predictors of teacher turnover, with more effective principals being more likely to retain their best teachers. 5

The Hawkins Program is critical in enabling the Department to meet its goal of supporting a diverse teacher workforce to improve student opportunities, achievement and outcomes, and address the educator shortage, by providing expanded access to comprehensive, high-quality, and affordable educator preparation programs. To increase and retain the number of well-prepared teachers from diverse backgrounds, and improve their preparation, recruitment, retention and placement, the Department proposes the following three priorities. We may use one or more of these priorities in any year in which this program is in effect.

Proposed Priority 1: Increase Evidence-Based, Comprehensive Pre-service Clinical Experiences Through Teacher Preparation Programs.

Background: The Department proposes this priority to assist centers of excellence at eligible institutions of higher education (IHEs) in expanding their pre-service clinical experiences through comprehensive teacher preparation programs. The priority would advance comprehensive, high-quality teacher preparation by creating partnerships with local high-need districts and schools, in order to form meaningful clinical practice partnerships and help address teacher shortages. These clinical practice partnerships can both provide a preparation opportunity and serve as a pathway to hiring well-prepared teacher candidates from backgrounds that are underrepresented in the profession, including teacher candidates of color. High-quality, evidence-based clinical experience can also lead to increased teacher retention as research demonstrates that teachers prepared in classrooms similar to those they teach in after graduation are more likely to remain in the classroom. 6 Furthermore, extensive, high-quality, evidence-based, clinical experience is one of three “aspects of preparation that have the highest potential for effects on outcomes for students.”  7

There are several ways educator preparation programs can partner with school districts and schools to provide these kinds of clinical experiences. For example, a number of school districts are partnering with teacher preparation programs to provide clinical experiences that are mutually beneficial for teacher candidates and teachers of record, and their students. Teacher candidates, in addition to completing the required elements of evidence-based clinical experience, may also serve in schools in roles that support students and teachers as their academic schedules allow and as they complete their other requirements for teacher certification. Teacher residencies and Grow Your Own programs, which may be supported through registered teacher apprenticeship programs, can support teacher candidates serving in these roles and cover the costs associated with extensive clinical experience. Other examples of educator preparation programs supporting high need schools in this way can be found here: www.ed.gov/coronavirus/factsheets/teacher-shortage.

Proposed Priority 1:

To meet this priority, an eligible applicant must propose projects that are evidence-based (as defined in 34 CFR 77.1) comprehensive teacher preparation programs that provide extensive clinical experience. Applicants with existing programs must describe their record in graduating highly skilled, well-prepared, and diverse teachers and describe how the proposed project will refine or enhance existing programs. Applicants proposing new programs must describe how their new program is evidence-based and designed to achieve the intended outcomes of the Hawkins Program. Applicants must also address how they will—

(a) Examine the sources of inequity and inadequacy in resources and opportunity and implement pedagogical practices in teacher preparation programs that are inclusive with regard to race, ethnicity, culture, language, gender, and disability status and that prepare teachers to create inclusive, supportive, equitable, unbiased, and identity-safe learning environments for their students;

(b) Prepare teacher candidates to integrate rigorous academic content, including through the effective use of technology, and instructional techniques and strategies consistent with universal design for learning principles;

(c) Prepare teacher candidates to design and deliver instruction in ways that are engaging and provide their students with opportunities to think critically and solve complex problems, apply learning in authentic and real-world settings, communicate and collaborate effectively, and develop growth mindsets. Teacher candidate pedagogy should include how to incorporate project-based, work-based, or other experiential learning opportunities in curriculum development;

(d) Prepare teacher candidates to build meaningful and trusting relationships with students and their families to support in-home, community-based, and in-school learning; and

(e) Provide sustained and high-quality pre-service clinical experiences, including teaching assistant initiatives, that facilitate the pathway to the teaching credential for those with paraprofessional experience or high-quality school leader induction and support in the first three years of school leadership for principals and other school leaders. In providing such experiences, applicants must consider opportunities to provide pre-service clinical experience earlier in the teacher preparation program, as is practicable, and in ways that benefit students and teachers. These clinical experiences must be designed to—

(1) Integrate pedagogy and classroom practice and promote effective teaching skills in academic content areas;

(2) Be tightly aligned with course work with clear, relevant, and strong links between theory and practice;

(3) Group teacher candidates in cohorts to facilitate reflection of practice and professional collaboration;

(4) Closely supervise interaction between teacher candidates and faculty, experienced teachers, principals, and other administrators in high-need schools or hard-to-staff schools; and

(5) Provide high-quality-teacher mentoring.

Proposed Priority 2: Projects that are Designed to Increase and Retain the Number of Well-Prepared Teachers from Diverse Backgrounds.

Background: The Department proposes this priority to increase teacher diversity by supporting teacher candidates from backgrounds that are underrepresented in the profession. While the majority of U.S public school students are children of color, 8 only 20 percent of teachers are people of color and 40 percent of the Nation's public schools do not have a single teacher of color on record. 9 Research shows that teachers of color benefit all students and can have a significant positive impact on students of color. 10 When students of color are instructed by teachers of color, higher levels of student achievement, 11 student encouragement, students forming aspirations ( e.g., through role modeling), teacher recommendations (for example, to gifted and talented programs), and rigorous course-taking  12 have all been observed. Research also demonstrates that teachers of color can be positive role models for all students in breaking down negative stereotypes and preparing students to live and work in a multiracial society. 13 A more diverse teacher workforce also increases the likelihood that students of color will have access to culturally and linguistically relevant teaching and learning and positive relationships. 14 Thus, supporting teachers of color can be a critical strategy for advancing educational equity for students of color and addressing one of the root causes of institutional barriers to equity in the academic environment. 15

Proposed Priority 2:

To meet this priority, applicants must propose projects that are designed to increase the number of well-prepared teachers and the diversity of the teacher workforce with a focus on increasing and retaining a diverse teacher workforce, and improving the preparation, recruitment, retention, and placement of such teachers.

Applicants addressing this priority must describe—

(a) How their project will integrate multiple services or initiatives across academic and student affairs, such as academic advising, counseling, stipends, child-care, structured/guided pathways from teacher candidates' first year in the preparation program through successful employment placement, career services, or student financial aid, such as scholarships, with the goal of increasing program completion and credential attainment;

(b) Their plan for identifying and supporting teacher candidates from backgrounds that are underrepresented in the profession, including teacher candidates of color. This plan must span the beginning of the preparation program through graduation, and include a plan to improve program entry rates, as applicable, graduation rates, passage rates for certification and licensure exams, and rates of successful employment placement between teacher candidate subgroups and an institution's overall teacher candidate population; and

(c) Their proposed initiatives to promote the retention of teachers from backgrounds that are underrepresented in the profession, including teachers of color, prepared through the program, which may include induction programs, such as teacher or school leader induction programs, or mentorship programs that provide school and district leaders with the support they need to persist in their professions.

Proposed Priority 3—Increasing the Number of Bilingual and/or Multilingual Teachers with Full Certification.

Background: The Department proposes this priority to increase teacher diversity by expanding the number of bilingual and multilingual teachers with full teacher certification. In addition to the need for more teachers of color, a parallel challenge in the Nation's public schools lies in the shortage of multilingual teachers prepared to teach a growing population of English Learners (ELs). ELs are the fastest growing student demographic, with more than ten percent of students identified as ELs currently. 16 Additionally, about one-quarter of all students speak a language other than English at home, whereas only 1 in 8 teachers do. 17 Despite that, more than half of the States nationwide are experiencing bilingual and multilingual teacher shortages and a quarter of the States do not require certification or endorsements for teachers who teach ELs. 18

The bilingual and multilingual teacher shortage has the potential to have a negative impact on all students, but especially ELs. These shortages may be among the reasons why ELs have some of the lowest achievement levels and graduation rates. 19 During the pandemic, ELs were also likely to lose instructional time, thus experiencing setbacks in their language acquisition goals. 20 Research demonstrates that ELs who are taught in bilingual settings, such as dual-language immersion programs, by well-prepared bilingual teachers have stronger academic outcomes and better English-language acquisition trajectories than ELs who are taught in English only, which underscores the need to close the multilingual teacher shortage gap. 21 Additionally, ELs who learn in bilingual settings in which they can maintain their native languages while learning English have stronger social and emotional development, cross-cultural skills, and problem-solving skills. 22

Bilingual and multilingual learning environments can also mitigate linguistic barriers that limit family engagement, as bilingual and multilingual teachers are more likely to communicate with linguistically diverse families and ensure they have equitable access to learn about their students' education. 23 Bilingual and multilingual teachers' assets are critical to creating inclusive school and family partnerships where linguistically diverse families can meaningfully participate in their child's education. 24

Proposed Priority 3:

To meet this priority, applicants must propose projects that are designed to prepare effective and experienced bilingual and/or multilingual teachers for high-need schools by increasing the number of teachers across elementary and secondary schools who are fully certified to provide academic language instruction in a language other than English, including for English Learners (ELs). These projects must prepare teacher candidates to lead students toward linguistic fluency and academic achievement in more than one language. Applicants must describe how—

(a) Their project will integrate multiple services or initiatives across academic and student affairs, such as academic advising, counseling, stipends, child-care, structured/guided pathways from teacher candidates' first year in the preparation program through successful employment placement, career services, and student financial aid, such as scholarships, and provide the necessary knowledge and skills so that teacher candidates can serve students from many different language backgrounds; and

(b) Their plan for recruiting, supporting, and retaining bilingual and/or multilingual teacher candidates, including those who may have a teaching credential but have not been teaching in bilingual and/or multilingual education settings; aspiring teachers; and teaching assistants who are interested in becoming bilingual and/or multilingual teachers.

When inviting applications for a competition using one or more priorities, we designate the type of each priority as absolute, competitive preference, or invitational through a notice in the Federal Register . The effect of each type of priority follows:

Absolute priority: Under an absolute priority, we consider only applications that meet the priority (34 CFR 75.105(c)(3)).

Competitive preference priority: Under a competitive preference priority, we give competitive preference to an application by (1) awarding additional points, depending on the extent to which the application meets the priority (34 CFR 75.105(c)(2)(i)); or (2) selecting an application that meets the priority over an application of comparable merit that does not meet the priority (34 CFR 75.105(c)(2)(ii)).

Invitational priority: Under an invitational priority, we are particularly interested in applications that meet the priority. However, we do not give an application that meets the priority a preference over other applications (34 CFR 75.105(c)(1)).

The Department proposes the following requirements for this program. We may apply one or more of these requirements in any year in which this program is in effect.

Proposed Requirement 1—Draft Written Agreement with Clinical Practice Partner(s).

An applicant must provide a Draft Written Agreement (DWA) that identifies the partnership between: (1) at least one eligible IHE with a state accredited teacher preparation program, and (2) a high-need local educational agency (LEA) or consortium of high-need LEAs, or with a high-need school or consortium of high-need schools. The agreement with partners is intended to ensure that the parties joining the project are committed to fulfilling the purpose of the clinical practice by either creating new partnerships or expanding existing partnerships, and that teacher candidates will not become the teacher of record prior to completing the certification program, including pre-service clinical experience, and, for any candidates who entered the program without a bachelor's degree, obtaining a bachelor's. Grantees will finalize the DWA into a Final Written Agreement (FWA) within 120 days of grant award notification.

Proposed Requirement 2—Supplement-Not-Supplant.

Grant funds must be used so that they supplement and, to the extent practical, increase the funds that would otherwise be available for the activities to be carried out under this grant.

Proposed Requirement 3—Indirect Cost Rate Information.

A grantee's indirect cost reimbursement is limited to 8 percent of a modified total direct cost base. For more information regarding indirect costs, or to obtain a negotiated indirect cost rate, please see www.ed.gov/about/offices/list/ocfo/intro.html.

The Department proposes the following definition for this program. We may apply this definition in any year in which this program is in effect.

Pre-service means the period of training for a person who does not have a prior teaching certification or license and who is enrolled in a State-approved teacher education program at an institution of higher education, prior to becoming the teacher of record.

We will announce the final priorities, requirements, and definition in a document in the Federal Register . We will determine the final priorities, requirements, and definition after considering public comments on the proposed priorities, requirements, and definition and other information available to the Department. This document does not preclude us from proposing additional priorities,requirements, definitions, or selection criteria, subject to meeting applicable rulemaking requirements.

Note: This document does not solicit applications. In any year in which we choose to use one or more of these priorities, requirements, and definition, we invite applications through a notice in the Federal Register .

Under Executive Order 12866, the Office of Management and Budget (OMB) determines whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by OMB. Section 3(f) of Executive Order 12866, as amended by Executive Order 14094, defines a “significant regulatory action” as an action likely to result in a rule that may—

(1) Have an annual effect on the economy of $200 million or more (adjusted every three years by the Administrator of Office of Information and Regulatory Affairs (OIRA) for changes in gross domestic product); or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, territorial, or Tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impacts of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise legal or policy issues for which centralized review would meaningfully further the President's priorities, or the principles set forth in this Executive order, as specifically authorized in a timely manner by the Administrator of OIRA in each case.

This proposed regulatory action is not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866, as amended by Executive Order 14094.

We have also reviewed this proposed regulatory action under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866, as amended by Executive Order 14094. To the extent permitted by law, Executive Order 13563 requires that an agency—

(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);

(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;

(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);

(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and

(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.

Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”

We are issuing these proposed priorities, requirements, and definition only on a reasoned determination that their benefits would justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that would maximize net benefits. Based on the analysis that follows, the Department believes that this regulatory action is consistent with the principles in Executive Order 13563.

The potential costs associated with these priorities, requirements, and definition would be minimal, while the potential benefits are significant. The Department believes that this proposed regulatory action would not impose significant costs on eligible entities. Participation in this program is voluntary, and the costs imposed on applicants by this regulatory action would be limited to paperwork burden related to preparing an application. The potential benefits of implementing the program would outweigh the costs incurred by applicants, and the costs of carrying out activities associated with the application would be paid for with program funds. For these reasons, we have determined that the costs of implementation would not be burdensome for eligible applicants, including small entities.

We also have determined that this regulatory action would not unduly interfere with State, local, and Tribal governments in the exercise of their governmental functions.

In accordance with these Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The potential costs are those resulting from statutory requirements and those we have determined as necessary for administering the Department's programs and activities.

Executive Order 12866 and the Presidential memorandum “Plain Language in Government Writing” require each agency to write regulations that are easy to understand. The Secretary invites comments on how to make these proposed priorities, requirements, and definition easier to understand, including answers to questions such as the following:

• Are the requirements in the proposed priorities, requirements, and definition clearly stated?

• Do the proposed priorities, requirements, and definition contain technical terms or other wording that interferes with their clarity?

• Does the format of the proposed priorities, requirements, and definition (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce their clarity?

• Would the proposed priorities, requirements, and definition be easier to understand if we divided them into more (but shorter) sections?

• Could the description of the proposed priorities, requirements, and definition in the SUPPLEMENTARY INFORMATION section of this preamble be more helpful in making the proposed priorities, requirements, and definition easier to understand? If so, how?

• What else could we do to make the proposed priorities, requirements, and definition easier to understand?

To send any comments that concern how the Department could make these proposed priorities, requirements, and definition easier to understand, see the instructions in the ADDRESSES section.

Intergovernmental Review: This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.

This document provides early notification of our specific plans and actions for this program.

The Secretary certifies that these proposed priorities, requirements, and definition would not have a significant economic impact on a substantial number of small entities.

The small entities that this proposed regulatory action would affect are IHEs that meet the eligibility requirements described in section 241(1) of the HEA. The Secretary believes that the costs imposed on applicants by the proposed priorities, requirements, and definition would be limited to paperwork burden related to preparing an application and that the benefits would outweigh any costs incurred by applicants.

Participation in this program is voluntary. For this reason, the proposed priorities, requirements, and definition would impose no burden on small entities unless they applied for funding under the program. We expect that in determining whether to apply for Hawkins Program funds, an eligible applicant would evaluate the requirements of preparing an application and any associated costs, and weigh them against the benefits likely to be achieved by receiving a Hawkins Program grant. Eligible applicants most likely would apply only if they determine that the likely benefits exceed the costs of preparing an application. The likely benefits include the potential receipt of a grant as well as other benefits that may accrue to an entity through its development of an application, such as the use of that application to seek funding from other sources to address the teacher shortage present in the Nation's high need-need public schools.

This proposed regulatory action would not have a significant economic impact on a small entity once it receives a grant because it would be able to meet the costs of compliance using the funds provided under this program. We invite comments from eligible small entities as to whether they believe this proposed regulatory action would have a significant economic impact on them and, if so, request evidence to support that belief.

These proposed priorities, requirements, and definition do not contain any information collection requirements.

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 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.

I. Background

General conformity is a requirement of CAA section 176(c). General conformity prohibits Federal actions within nonattainment and maintenance areas unless the emissions from the actions conform to the applicable SIP, Tribal Implementation Plan (TIP), or Federal Implementation Plan (FIP) for the area. 1 Conformity to an implementation plan means conformity to an implementation plan's purpose of eliminating or reducing the severity and number of violations of the national ambient air quality standards (NAAQS or standards) and achieving expeditious attainment of such standards. See section 176(c)(1). Under general conformity, Federal actions cannot: (1) Cause or contribute to any new violation of any standard in any area; (2) increase the frequency or severity of any existing violation of any air quality standard in any area; or (3) or delay timely attainment of any standard, any required interim emission reductions, or any other milestones, in any area. Id.

EPA promulgated two sets of conformity regulations in November 1993 to implement section 176(c) of the CAA. First, EPA promulgated transportation conformity regulations, which apply to highways and mass transit, on November 24, 1993. See 58 FR 62188. These regulations establish the criteria and procedures for determining whether transportation plans, programs, and projects funded under 23 U.S.C. or the Federal Transit Act (40 U.S.C. chapter 53) conform with implementation plans. EPA subsequently revised the transportation conformity regulations several times. See 69 FR 40004 (July 1, 2004); 70 FR 24280 (May 6, 2005); 71 FR 12468 (March 10, 2006); and 73 FR 4420 (January 24, 2008). Second, on November 30, 1993, EPA promulgated the general conformity regulations at 40 CFR part 51, subpart W and 40 CFR part 93, subpart B, which applied to all other Federal actions to ensure they conformed with implementation plans. See 58 FR 63214. EPA has revised its general conformity regulations twice. See 71 FR 40420 (July 17, 2006) and 75 FR 17254 (April 5, 2010). As part of the 2010 revisions, EPA revised its general conformity regulations to remove rules from 40 CFR part 51, subpart W that were duplicative of those in 40 CFR part 93, subpart B. See 75 FR 17254 (April 5, 2010). 2

Florida Rule 62-204.500, Florida Administrative Code (F.A.C.), Conformity, addresses general conformity in paragraph (1). EPA incorporated Rule 62-204.500 into the Florida SIP in a direct final rule on August 11, 2003. See 68 FR 47468. Since then, Florida has amended Rule 62-204.500, and those changes are the subject of this notice of proposed rulemaking (NPRM). 3

Florida's August 12, 2022, SIP revision updates Rule 62-204.500, Conformity. Specifically, the SIP revision changes the “General Conformity” section at paragraph (1) by updating cross-references.

Florida's SIP revision updates two cross-references in paragraph (1) of Rule 62-204.500. Specifically, the revision replaces two cross-references that refer to 40 CFR part 51, subpart W, with references to 40 CFR part 93, subpart B. The SIP-approved version of paragraph (1), states that it applies to state review of all Federal general conformity determinations submitted to the state pursuant to 40 CFR part 51, subpart W. It also states that pursuant to 40 CFR part 51, subpart W, Federal agencies are required to make conformity determinations to ensure that certain Federal actions are consistent with the SIP. As mentioned in Section I of this notice, EPA removed rules from 40 CFR part 51, subpart W that were duplicative of those in 40 CFR part 93, subpart B. Because the SIP-approved version of Rule 62-204.500 relies on the duplicative rules that EPA removed from 40 CFR part 51, the SIP-approved rule is outdated. EPA is proposing to approve the changes to paragraph (1) because they update the cross-references to the correct location of the implementing requirements for general conformity.

In this document, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, and as discussed in Section II of this preamble, the EPA is proposing to incorporate by reference Florida Rule 62-204.500, F.A.C ., Conformity, state effective on October 23, 2016, except for 62-204.500(1)(a), 62-204.500(1)(b), 62-204.500(1)(c), and 62-204.500(1)(d). The EPA has made, and will continue to make, the SIP generally available through www.regulations.gov and at the EPA Region 4 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

For the reasons discussed above, EPA is proposing to approve the August 12, 2022, Florida SIP revision updating Rule 62-204.500, Conformity, in the Florida SIP.

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

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);

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

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

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

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

• Is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it approves a state program;

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

• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA.

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

Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, Feb. 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”

The FDEP did not evaluate EJ considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. EPA did not perform an EJ analysis and did not consider EJ in this proposed action. Due to the nature of the action being proposed here, this proposed action is expected to have a neutral to positive impact on the air quality of the affected area. Consideration of EJ is not required as part of this proposed action, and there is no information in the record inconsistent with the stated goal of E.O. 12898 of achieving EJ for people of color, low-income populations, and Indigenous peoples.

This is a summary of the Commission's Further Notice of Proposed Rulemaking ( Further Notice ) in GN Docket No. 22-69, FCC 23-100, adopted on November 15, 2023, and released on November 20, 2023. The full text of this document is available for download at https://docs.fcc.gov/public/attachments/FCC-23-100A1.pdf. To request materials in accessible formats for people with disabilities ( e.g., braille, large print, electronic files, audio format, etc.), send an email to FCC504@fcc.gov or call the Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice) or (202) 418-0432 (TTY).

Providing Accountability Through Transparency Act: The Providing Accountability Through Transparency Act, Public Law 118-9, requires each agency, in providing notice of a rulemaking, to post online a brief plain-language summary of the proposed rule. The required summary of this Further Notice of Proposed Rulemaking is available at https://www.fcc.gov/proposed-rulemakings.

Initial Paperwork Reduction Act of 1995 Analysis: This document contains proposed information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. Public and agency comments are due April 1, 2024.

Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

• Electronic Filers: Comments may be filed electronically using the internet by accessing the ECFS: http://apps.fcc.gov/ecfs/.

• Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing.

• Filings can be sent by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701. U.S. Postal Service first-class, Express, and Priority mail must be addressed to 45 L Street NE, Washington, DC 20554.

• Effective March 19, 2020, and until further notice, the Commission no longer accepts any hand or messenger delivered filings. This is a temporary measure taken to help protect the health and safety of individuals, and to mitigate the transmission of COVID-19. See FCC Announces Closure of FCC Headquarters Open Window and Change in Hand-Delivery Policy, Public Notice, DA 20-304 (March 19, 2020), https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy.

People With Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

The proceeding this document initiates shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with rule 1.1206(b). In proceedings governed by rule 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format ( e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

This document may contain potential new or revised information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. Public and agency comments are due April 1, 2024.

Comments should address: (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and (e) way to further reduce the information collection burden on small business concerns with fewer than 25 employees. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission seeks specific comment on how it might further reduce the information collection burden for small business concerns with fewer than 25 employees.

1. In this Further Notice we take additional steps to fulfill our statutory mandate to facilitate equal access to broadband internet access service by preventing digital discrimination of access. We seek further, focused comments on affirmative obligations that might be undertaken by broadband service access providers (providers) to expand broadband access and address possible digital discrimination of access. Our digital discrimination of access rules apply to “covered entities” which is broader than broadband providers, but at this time our proposed annual report and compliance program are limited to broadband providers as defined in 47 CFR 54.1600(b). The proposals in this Further Notice complement rules we adopt today by focusing on providers' day-to-day business practices that might, in some instances, differentially impact consumers' access to broadband on prohibited bases. Our proposals are intended to make fully transparent to the public what communities are served, and what communities are not served, by large-scale broadband deployment, upgrade, and maintenance projects completed or substantially completed by each provider over the preceding calendar year. We propose to require the reporting of this information on a state-by-state or territory-by-territory basis in a yearly supplement to the Broadband Data Collection (BDC) so the public can see not only where broadband service is available, but where and how providers are currently investing in their broadband networks and what communities are benefiting from those investments. Our proposals would also require providers to establish formal compliance programs related to digital discrimination of access and to conduct regular, internal assessments of what communities are served (and not served) by recently completed, pending, and planned large-scale broadband projects and whether their relevant policies and practices might differentially impact consumers' access to broadband service. Such regular assessments, we believe, will help “smoke out” policies and practices that might impede equal access to broadband service without sufficient technical or economic justification as providers pressure test the asserted justifications for policies and practices producing such effects. Affirmative obligations such as these are not foreign to the Commission. Most recently, for example, the Commission has adopted affirmative obligations for voice service providers to better police their own networks against illegal robocalls and protect consumers from widespread fraud, and we believe that targeted affirmative and effective measures can similarly combat discriminatory practices in the context of our duty under section 60506 to prevent and identify steps to eliminate digital discrimination of access.

2. In this Further Notice, we propose two sets of affirmative obligations for broadband providers in furtherance of our mandate to facilitate equal access to broadband internet access service, including by preventing digital discrimination of access. Under our proposal, each broadband provider would be required to: (1) submit an annual, publicly-available supplement to the BDC describing, on a state-by-state or territory-by-territory basis, any large-scale broadband deployment, upgrade, and maintenance projects that were completed or substantially completed during the preceding calendar year and the communities served by such projects; and (2) establish a mandatory internal compliance program requiring regular internal assessment of (a) what communities are served by recent, pending, and planned large-scale projects and (b) whether the provider's broadband-related policies and practices might differentially impact consumers' access to broadband based on a listed characteristic and without adequate technical or economic justification.

3. Legal Authority. We seek general comment on our authority to require providers to implement affirmative obligations. Section 60506 directs the Commission to adopt rules to prevent digital discrimination of access and identify necessary steps to eliminate such discrimination. Does section 60506 authorize the Commission to impose affirmative obligations on providers? Does the Communications Act provide the Commission such authority, irrespective of whether section 60506 is part of the Communications Act? Does section 4(i) of the Communications Act provide the Commission either direct or ancillary authority to do so? Besides these legal authorities, are there other sources for our authority to implement affirmative obligations of the types set forth below?

4. We propose requiring that providers submit an annual, publicly-available supplement to the BDC describing their recent broadband investments in each state and territory. This supplemental report would identify and describe, on a state-by-state or territory-by-territory basis, all fixed or mobile broadband deployment, upgrade, and maintenance projects completed or substantially completed in the preceding calendar year, that are expected to affect the availability or quality of broadband service at 500 or more housing units. A “housing unit” is defined as a single family house, townhome, mobile home or trailer, apartment, group of rooms, or single room that is occupied as a separate living quarters, or, if vacant, is intended for occupancy as a separate living quarters. The report would categorize each such project as a deployment, upgrade, or maintenance project (or some combination thereof) and would identify the number of housing units affected by the project through numerical bands (such as 500-999, 1000-4999, 5000-9999, etc.). The report would identify through the census tract affected by the project, and would provide a brief narrative description of the project and the geographic area served by the project to provide greater precision and clarity regarding what the project is designed to accomplish and what communities are served by the project. The primary goal of requiring this report would be to increase transparency regarding what substantial investments providers are currently making in their networks, what communities are being served—or not served—by those investments, and how they are being served. The information provided in the annual supplement to the BDC would allow the Commission, state and local broadband regulators, public interest organizations, and other stakeholders to review on a jurisdiction-by-jurisdiction basis what major deployment, upgrade, and maintenance projects covered entities have completed or substantially completed within the states and territories of their footprint and what communities are and are not served by those projects. We believe this information would assist in the development of broadband policy, in the strengthening of advocacy for broadband expansion, and in the targeting of our efforts to enforce our digital discrimination of access rules.

5. In the Notice of Proposed Rulemaking, 88 FR 3681, we sought comment on what self-assessment or reporting obligations we should require of providers. In response, the Leadership Conference on Civil and Human Rights suggested that we look to other sources of civil rights law to develop affirmative obligations, Microsoft recommended that providers use Commission data to formulate plans to address digital discrimination of access, and several commenters recommended self-reporting requirements. Based on the comments received in the record, we believe our steps in this Further Notice are consistent with recommendations for self-reporting and will result in useful data to stakeholders. We seek comment on this approach.

6. We propose that each annual report must address the following components to provide a comprehensive picture of each major deployment, maintenance, and upgrade project completed or substantially completed for each state and territory within its service area or footprint: (1) the nature of each project completed or substantially completed in the calendar year immediately preceding the submission of the report ( i.e., deployment, upgrade, maintenance, or a combination thereof); (2) the number of housing units affected by the project ( i.e., the number of housing units whose broadband availability or quality is positively impacted by the project) by census tract (utilizing the system presently used in the BDC); and (3) a narrative description of the project and of the areas served by the project, to allow for greater precision and clarity regarding what the project is designed to accomplish and what communities are served by the project.

7. We seek general comment on the pros and cons of an annual report in the context of this proceeding. What are the short-term and long-term benefits of this proposal? Is there a more appropriate way to collect this information other than an annual report? Is there a way we can utilize existing data in connection with or in place of the proposed annual report to promote transparency regarding broadband investments? How could regulators leverage these reports to address potential disparities in broadband access? Are there other stakeholders that would benefit from such a report? Are there other uses for such a report that would foster the equal access policy of section 60506? Are there other potential benefits or challenges in implementing an annual reporting requirement?

8. We also invite comment on the proposed components of the annual report, discussed in turn below. Are they sufficient? Are there other components that are necessary to meet our transparency goal. Are any of the proposed components in conflict or tension with the equal access goal of section 60506? What other reasons or justifications might exist for excluding one or more of the proposed components of the report? Would there be challenges in implementing this proposal and if so, how can the challenges be addressed? We seek comment on how to strike the right balance between gathering sufficient information and avoiding undue burdens on reporting entities when implementing this annual report requirement.

9. Nature of the projects. In identifying the nature of the projects completed or substantially completed in the report, our proposal would require that providers identify any broadband deployment, upgrade, or maintenance projects undertaken within the specified period and affecting 500 or more housing units. We believe that deployment, maintenance, and upgrade projects are the type of investments that most broadly and directly affect consumer access to broadband service and, thus, should be reported in order to facilitate greater transparency regarding where such investments are being made. We seek comment on this proposal. We propose to deem a project completed when all the tasks and objectives have been successfully completed, all deliverables have been produced, all milestones have been met, and there is no outstanding work or tasks to be done. We also seek comment on what should be considered a substantially completed project. For example, should we define substantially completed as being a project for which, at the providers' discretion, either 85% of the impacted locations are covered, or for which 85% of the most recent budget with commercial approval has been spent? Should the difference between the definitions of substantially completed and completed be based on providers expected timeline for a project?

10. Housing units affected. We propose that the reporting requirement apply to projects affecting 500 or more housing units. We propose to use the definition of a “housing unit” in Commission rule 802.223, which defines the term as “a single family house, townhome, mobile home or trailer, apartment, group of rooms, or single room that is occupied as a separate living quarters, or, if vacant, is intended for occupancy as a separate living quarters.” An “economic unit” consists of all adult individuals contributing to and sharing in the income and expenses of a household. We seek comment on this definition. Based on this proposed definition, we seek comment on what number of housing units should trigger the requirement to report on a particular project. Is the number 500 reasonable in light of our transparency goal? Should the same threshold number of housing units apply to deployment, upgrade, and maintenance projects? Should different thresholds be applied to each category? Once the 500 housing unit threshold is met, is categorizing housing units in metric bands ( e.g., 500-999, 1000-4999, 5000-9999) an effective method to report the scope of the deployment, maintenance, or upgrade projects? We specifically seek comment on the potential impacts on rural and Tribal areas. Should there be special considerations for rural and Tribal areas? If so, how can we ensure that these areas are being considered?

11. Geographic area of the project. We seek comment on requiring providers to report the geographic area of each major deployment, upgrade, and maintenance project by census tract. Would reporting projects at the level of the census tract be appropriate? What benefits and burdens would be associated with reporting data at the census tract level? Would census block be too granular? Should providers be required or permitted to report impacted locations in the same manner as they report deployed locations in the BDC? Since the BDC allows providers to report availability data in the form of polygon shapefiles, or as broadband serviceable location fabric (fabric), would adopting either one of these metrics reduce the burden on filers? In what format do covered entities routinely store data on deployments, upgrades, and maintenance projects? To the extent covered entities do not routinely collect and store such information, we seek comment on how to specify a single methodology for doing so.

12. We also seek comment on whether there are more precise metrics to identify the location of projects in rural and Tribal areas than the proposed census tract metric. Are there any additional issues specific to rural and Tribal areas that we should consider in completion of these annual reports? Would a census block requirement be workable? Would it encompass rural and Tribal areas more efficiently? Should providers be required to identify whether the impacted area is rural or Tribal and, if so, how should they do that? Should covered entities be required to specifically describe their projects in Tribal areas, irrespective of the number of housing units served by the project?

13. Narrative description of project. We propose that providers use the narrative description to provide information regarding each project sufficient to determine what the project was designed to accomplish, why it was undertaken, and what communities within the designed census tracts it was intended to serve. In particular, the designation of a project as a deployment, upgrade, or maintenance project may not sufficiently explain what the project was intended to accomplish ( e.g., upgrade service from DSL to fiber) or the specific communities within the designated census tracts that will be served by the project ( e.g., naming the neighborhoods served or providing the geographic boundaries of the project). By requiring the narrative description of the project, we intend to allow greater precision and clarity about the nature of the project and the communities served, without being overly prescriptive. We seek comment on this proposal. Should we be more prescriptive about the narrative descriptions required? Should we require, for example, that providers describe the demographics of the communities served by these projects and/or the dates the projects were completed or substantially completed? Is there other narrative information we should require in order for the reporting requirement to serve its intended purpose of providing greater transparency regarding recent broadband investments? More generally, is a report of the type we propose necessary or helpful in light of the data already being collected through the BDC?

14. We propose to require providers to file their annual report as a supplement to the BDC report due in March of each year and that it cover projects completed or substantially completed in the calendar year immediately preceding the submission of the report. We seek comment on this proposal. We seek comment on this filing timetable and whether it provides sufficient time for providers to gather and review the information required in the report. We also seek comment on whether submitting the annual report as a supplement to the year-end BDC filing is the most reasonable and efficient approach. Should these deadlines be staggered? If so, how much time should be allotted between the filing of the year-end BDC report and the annual, major projects report?

15. We propose to make the results of these annual reports available to the public. As discussed above, we tentatively conclude that significant benefits would flow from making these reports public, such as increasing transparency regarding substantial investments by providers, informing broadband policy at the Federal, state and local level, strengthening advocacy for expanded broadband access, and targeting the Commission's efforts to enforce the rules we adopt today. We seek comment on our proposal to make these reports public. What is the best method for releasing these reports to the public? Should these reports be easily accessible on the provider's website or should they be made available by another means? We also seek comment on the benefits or burdens of making the reports available to the public. Are there confidentiality concerns we need to consider with respect to the information in question? If so, what measures would be necessary to protect the legitimate confidentiality interests of providers?

16. We also seek comment on whether the Commission should publish certain data from the proposed annual reports in the Commission's existing reports, such as the Communications Marketplace Report or the broadband progress report required by section 706 of the Telecommunications Act of 1996 (Section 706 Report). We note that the Commission has already initiated the inquiry for the next Section 706 Report. Although we propose that the annual reports be publicly available, as supplements to the annual BDC filings, would including certain data in either of these existing Commission reports provide greater transparency to consumers and communities? If so, what data should be included? Should we include the entirety of the proposed annual reports, or limit the data to a more narrow set of data points? Should we expand the information published in the Communications Marketplace Report or the Section 706 Report beyond the proposed annual reports to include summaries of filed digital discrimination of access informal complaints, any findings of digital discrimination of access, or steps the Commission has taken to address equal access? Would including this additional information in either these Commission-issued reports enhance transparency and make the proposed annual reports fully available and accessible to more stakeholders?

17. We seek comment on how providers can leverage existing data sources, such as the existing BDC, in compiling these reports. To the extent we can model the requirements for this report off the BDC, how would that be helpful to providers? We assume that providers would prefer to use the same criteria and data fields that are used in the BDC to the extent possible. We seek comment on whether this is true.

18. Are the relevant criteria and data fields used in the BDC too broad or narrow for our present purposes? Is there a need for additional data to be collected or for different metrics to be used? Given that providers are aware of their deployment and report the impact of deployments as part of the BDC, what would be the additional burden of providing annual reports? Are there policies or procedures we can adopt to reduce the burden on providers?

19. We tentatively conclude that the annual reports proposed above should be certified by the provider as true and correct, just as occurs with respect to BDC submissions. We propose that the same experts who certify the BDC submissions also be required to certify the proposed annual report: (1) a corporate officer, and (2) an engineer. We seek comment on this proposal. Should we consider a different certification process? Is it necessary that both a corporate officer and an engineer certify reports containing the elements we have outlined above? Might other officers or employees of the provider be better informed to certify the contents of this annual report? We seek detailed comment on these matters.

20. We seek comment on whether any providers should be exempted from the requirement to submit an annual report based on their size, footprint, or service area. Should we exempt providers that primarily serve consumers at the rural and Tribal level and, if so, why? What other providers should be exempted from submitting an annual report and why?

21. It is important that records sufficient to determine the veracity of the proposed annual reports be retained for some period of time following submission of the reports. We seek comment on what records should be retained and for how long they should be retained in order to accomplish this verification purpose. We also seek comment on whether records related to the proposed annual reports should be retained for any purpose other than verification of the information contained in such reports.

22. In addition to the annual report, we propose to require each provider to adopt and maintain a formal internal compliance program designed to ensure regular assessment of whether and how the provider's policies and practices advance and impede equal access to broadband internet access service in its service area. In proposing to require such compliance programs, our goals are to ensure close internal scrutiny of policies and practices that might impede equal access to broadband and to promote accountability with regard to such policies and practices. In order to facilitate candid internal evaluation and assessment of a provider's policies and practices affecting broadband access, we do not propose to require providers to make publicly available any reports or other documentation of such internal evaluations and assessments. However, in order to ensure compliance with the requirement to conduct such evaluations and assessments, and/or in connection with a Commission investigation into alleged digital discrimination of access, the Commission reserves the right to require production of such reports and documentation subject to the Commission's existing confidentiality rules. We seek comment on this proposal.

23. Effective Compliance Program. We propose to model our mandatory internal compliance program on previously established effective compliance programs, while not being overly prescriptive regarding how the compliance program is designed. Such models teach us that effective compliance programs should include, at a minimum: (1) development and implementation of written policies and procedures; (2) designation of a compliance officer and/or compliance committee; (3) conducting effective training and education regarding the purposes and operation of the compliance program; (4) developing effective lines of reporting and communication; (5) conducting internal monitoring and auditing; (6) enforcing standards through well-publicized disciplinary guidelines; and (7) responding promptly to detected problems through corrective action. We seek comment on whether these should be mandatory components of the compliance programs we propose to require. Which of these elements of an effective compliance programs should we require? Which elements should we not require, if any? Are there additional elements we should consider adding in order to ensure that the compliance programs effectively advance their intended purpose of facilitating equal access to broadband? Although we seek comment on each of these elements, we note that our goal is to grant each broadband provider the flexibility to develop and maintain a plan that contains the required elements and serves our intended purposes without prescribing a particular formula as to how each required element should be implemented. We seek comment on whether such flexibility will be beneficial or detrimental to the implementation of effective internal compliance programs by providers.

24. Implementing Written Policies and Procedures. We seek comment on requiring providers to implement internal written policies and procedures with the goal of preventing digital discrimination of access and promoting equal access to broadband internet access service. In the compliance program, are written policies and procedures necessary? What should those internal written policies and procedures include? Who should be knowledgeable about the rules and practices within the organization? How often should these written rules and procedures be reviewed, revised, and updated? Are there any available models that providers can look to when devising their internal policies and procedures to prevent digital discrimination of access and promote equal access?

25. Designating a Compliance Officer and/or Compliance Committee. We seek comment on requiring service providers to appoint a designated compliance officer or establish a compliance committee to ensure compliance with the program's requirements and timely cooperation with the Commission upon request. Is it necessary to designate a compliance officer or establish a compliance committee for the successful implementation of the compliance program? What should the qualifications of the selected compliance officer and compliance committee members be? What should the structure of a compliance committee be, how often should it meet, and what should be its functions? Should the designated compliance officer be required to provide that certification?

26. Conducting Effective Training on Commission Rules. We seek comment on requiring service providers to conduct periodic training for relevant employees on the Commission's digital discrimination of access rules. Who should conduct the training, who should be required to take the training, and how often should they be required to do so? How should the substantive content of the training be developed and what should it cover? Should the content of the training be certified or approved by the Commission in some manner? If so, how often should such certification or approval take place? Providers likely already have compliance programs and employee trainings to maintain compliance with regulatory requirements at many levels. What would be the additional burden for providers to incorporate compliance with digital discrimination of access rules into their existing compliance programs?

27. Developing Effective Lines of Reporting and Communication. We propose requiring broadband providers to put in place mechanisms and processes that: (1) encourage the internal reporting of matters that may constitute, or lead to, digital discrimination of access or otherwise impede equal access to broadband service; (2) channel those concerns to the compliance officer and/or compliance committee for evaluation and response, if warranted; and (3) ensure effective “up the chain” reporting by compliance officers and committees so senior officers are made aware of these matters and can take appropriate action to prevent their recurrence. We seek comment on this proposal. What system(s) can providers implement to encourage employees to raise concerns about potentially problematic conduct? What should be the reporting chain above the compliance officer and compliance committee to ensure that equal access concerns are given the highest possible priority by the provider? Are there other mechanisms and processes that we should require to achieve effective lines of reporting and communication regarding equal-access-related matters?

28. Conducting Internal Monitoring and Auditing. We seek comment on requiring broadband providers to perform periodic reviews of the compliance program and respond quickly to correct problems when they are detected. Who should conduct such periodic reviews and how often should they be conducted? What systems can providers put in place to evaluate the overall effectiveness of the program and its compliance with the requirements we ultimately adopt for such programs?

29. Responding Promptly to Detected Problems and Undertaking Corrective Action. We seek comment on what requirements we should adopt regarding the handling of problems reported by the compliance officer or committee to senior management, especially when no corrective action has been taken. What obligations would a compliance officer or committee have under those circumstances? What recourse would a compliance officer or committee have if a provider routinely fails to address reported violations of our rules? Should we require, in such instances, that the compliance officer report the matter to the Commission? Could a compliance officer truthfully certify that a compliance program consistent with our rules has been maintained throughout the certification period if reported violations of our rules are routinely ignored by the provider? We seek comment on these matters.

30. We seek comment on requiring providers to conduct annually an internal evaluation of recently completed, pending, and planned deployment, upgrade, and maintenance projects affecting 500 or more housing units. With respect to each such project, the internal evaluation should consist of a comparison of the demographics of the communities served by that project with the demographics of the Metropolitan Statistical Area (MSA) encompassing those served communities. The Centers for Disease Control and Prevention define MSA as “a geographic entity based on a county or a group of counties with at least one urbanized area with a population of at least 50,000 and adjacent counties with economic ties to the central area.” While the purpose of our proposal to require submission of annual reports to the Commission is to promote greater transparency regarding what communities are served by recently completed projects, the goal of our proposal to require periodic internal evaluation of large-scale projects is to facilitate close internal scrutiny of the provider's policies and practices affecting broadband access, determine whether those policies and practices advance or impede equal access to broadband service, and promote accountability regarding policies and practices that impede (or threaten to impede) equal access without adequate justification. Moreover, while our proposal regarding annual reporting would apply only to recently completed (or substantially completed) projects of a certain size, our proposal with respect to periodic internal evaluations would also apply to pending and planned projects. We seek comment on this proposal, and we specifically seek comment on: (1) how we should define “pending” projects and “planned” projects under this proposal; and (2) whether MSAs are the appropriate geographic comparator for the internal evaluation of covered projects.

31. We do not propose to prescribe the manner in which providers compare the demographics of served communities with the demographics of the MSAs encompassing those communities. We would require only that such comparisons be conducted with analytical rigor and in good faith using official data and reports of the U.S. Census Bureau, and that they be reasonably designed to uncover meaningful disparities between the reported demographics of served communities and the reported demographics of the MSAs encompassing those served communities. According to the Census Bureau, an MSA consists of one or more counties that contain a city of 50,000 or more inhabitants, or contain a Census Bureau-defined urbanized area (UA) and have a total population of at least 100,000 (75,000 in New England). While we would never expect precise numerical alignment with respect to any single project, we believe that routinely conducting these comparisons will give providers a better sense of what communities are being served (and not served) by their projects over time, and will help to “smoke out” policies and practices that discriminate without adequate justification. We seek comment on this proposal.

32. Evaluation and Assessment of Policies and Practices. We seek comment on requiring providers to: (1) periodically evaluate their policies and practices affecting broadband access to determine whether they differentially impact consumers' access to broadband internet access service based on income level, race, ethnicity, color, religion, or national origin, or otherwise impede equal access to broadband internet access service; and (2) report to senior management annually, and in writing, regarding the results of such evaluation. As noted above, the proposed requirement that providers periodically determine the demographics of communities served by designated broadband projects is intended to permit an assessment, over time, of whether the provider's broadband-related policies are effectively impeding equal access to broadband service. Those assessments should lead to critical examination of whether any policies and practices impeding such equal access are necessary and justified by legitimate business considerations and whether alternative policies and practices might reasonably be adopted and implemented in their place. We propose that compliance officers and/or committees be required to conduct such annual assessments and report annually to senior management, in writing, the results of such evaluations and assessments. This process will require providers to closely scrutinize policies and practices producing disparate impacts on prohibited bases or otherwise impeding equal access to broadband service. We believe these requirements are necessary to ensure that equal access to broadband service remains a top priority for providers, in fulfillment of Congress's instruction that the Commission “take steps to ensure that all people of the United States benefit from equal access to broadband internet access service.” We seek comment on this proposal.

33. Certification of Completion. We propose requiring providers to submit, in conjunction with the annual report proposed above, a certification that a compliance program satisfying all requirements finally adopted by the Commission was in place during the calendar year covered by the annual report. We propose that the certification be attested to by an officer and engineer as occurs with respect to the BDC, and that the provider's designated compliance officer (or the chair of the compliance committee) certify the same to the certifying officer and engineer. We seek comment on this proposal, including whether the designated compliance officer (or chair of the compliance committee) should be required to provide a certification directly to the Commission.

34. We also seek comment on whether any providers should be exempted from the proposed requirement to implement and maintain an internal compliance program meeting specified standards based on their size, footprint, or niche service area. Should we exempt providers that primarily serve consumers at the rural and Tribal level and, if so, why? What other providers should be exempted from these requirements, under what circumstances, and why? We seek comment on requiring providers who are entitled to an exemption under our rules to file a certification of exemption in lieu of a certification of compliance in conjunction with the annual report.

35. We seek comment on what records providers should be required to retain, and for how long, relating to the internal assessments of the projects described in the preceding paragraphs. Once a summary report of the internal assessment for a specific project is completed, should the provider be required to retain the underlying documents for some period of time? Should there be different retention periods for the summary reports than for the underlying documents?

36. We seek further, focused comment on establishing an Office of Civil Rights, as both advocates and broadband service providers have urged. In particular, we seek comment on the potential benefits establishing such an office. For example, would such an office be helpful in developing and maintaining the expertise to evaluate the effects of Commission policy initiatives on historically marginalized communities? Could it assist in determining when prohibited discrimination has occurred and aid in developing remedies for such discrimination? Might it help in evaluating claims and possible patterns of digital discrimination of access? And could it aid in monitoring informal complaints alleging digital discrimination of access and other forms of prohibited discrimination, as well as in the mediation process we have outlined in the Order? Why or why not? What other benefits might be associated with establishing an Office of Civil Rights? For example, could it work with broadband service providers to proactively mitigate potential instances of prohibited discrimination? Could such an office collaborate with broadband service providers and Federal and state governments to develop broadband adoption and digital literacy skills training that could be used on a nationwide basis? Could such an office be employed to address other substantive Commission policy issues and processes beyond matters arising under section 60506? If so, what other issues might an Office of Civil Rights oversee or how could it support other bureaus and offices in the Commission? Finally, what are the potential challenges associated with establishing an Office of Civil Rights? How should the Commission address these challenges? What are the costs associated with establishing an Office of Civil Rights? How should the Commission structure and staff such an office? What other structural and organizational changes would be required to establish such an office?

37. Digital Equity. The Commission, as part of its continuing effort to advance digital equity for all, including people of color, persons with disabilities, persons who live in rural or Tribal areas, and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality, invites comments on any equity-related considerations and benefits (if any) that may be associated with the proposals and issues discussed herein. We define the term “equity” consistent with Executive Order 13985 as the consistent and systematic fair, just, and impartial treatment of all individuals, including individuals who belong to underserved communities that have been denied such treatment, such as Black, Latino, and Indigenous and Native American persons, Asian Americans and Pacific Islanders and other persons of color; members of religious minorities; lesbian, gay, bisexual, transgender, and queer (LGBTQ+) persons; persons with disabilities; persons who live in rural areas; and persons otherwise adversely affected by persistent poverty or inequality. Specifically, we seek comment on how our proposals may promote or inhibit advances in diversity, equity, inclusion, and accessibility, as well as the scope of the Commission's relevant legal authority.

38. We have also prepared an Initial Regulatory Flexibility Analysis (IRFA) concerning the potential impact of the rule and policy changes contained in the Further Notice. Comments must be filed by the deadlines for comments on the Further Notice indicated on the first page of this document and must have a separate and distinct heading designating them as responses to the IRFA.

39. Paperwork Reduction Act. The Further Notice also may contain proposed new and revised information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and OMB to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we seek specific comment on how we might further reduce the information collection burden for small business concerns with fewer than 25 employees.

40. It is further ordered that the Commission's Office of the Secretary shall send a copy of this Report and Order and Further Notice of Proposed Rulemaking, including the Final Regulatory Flexibility Analysis and Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

41. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities by the policies and rules proposed in this Further Notice of Proposed Rulemaking ( Further Notice ). The Commission requests written public comments on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments provided on the first page of the Further Notice. The Commission will send a copy of the Further Notice, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the Further Notice and IRFA (or summaries thereof) will be published in the Federal Register .

42. In the Further Notice, the Commission takes additional steps to advance its efforts to fulfill the congressional direction in section 60506 of the Infrastructure Act to facilitate equal access to broadband internet access service by preventing digital discrimination of access, proposing rules that will address disparities in broadband availability and service offerings. Specifically, the Further Notice seeks comment on affirmative obligations that might be undertaken by broadband providers by complementing proposed rules adopted in the Report and Order, with a focus on broadband providers' day-to-day business practices that might, in some instances, differentially impact consumers' access to broadband on prohibited bases. The Further Notice also proposes to require the reporting of this information on a state-by-state or territory-by-territory basis in a yearly supplement to the BDC so the public can see not only where broadband coverage is provided, but where and how providers are currently investing in their broadband networks and what communities are benefiting from those investments. Additionally, the Further Notice proposes to require providers to establish formal compliance programs related to digital discrimination of access and to conduct regular, internal assessments of what communities are served (and not served) by recently completed, pending, and planned large-scale broadband projects and whether their relevant policies and practices might differentially impact consumers' access to broadband service.

43. The proposed action is authorized pursuant to sections 1, 2, 4(i)-(j), 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i)-(j), 303(r), and section 60506 of the Infrastructure Investment and Jobs Act, Public Law 117-58, 135 Stat. 429, 1245-46 (2021), codified at 47 U.S.C. 1754.

44. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules and by the rule revisions on which the Further Notice seeks comment, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small-business concern” under the Small Business Act. A “small-business concern” is one which: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.

45. Small Businesses, Small Organizations, Small Governmental Jurisdictions. Our actions, over time, may affect small entities that are not easily categorized at present. We therefore describe, at the outset, three broad groups of small entities that could be directly affected herein. First, while there are industry specific size standards for small businesses that are used in the regulatory flexibility analysis, according to data from the Small Business Administration's (SBA) Office of Advocacy, in general a small business is an independent business having fewer than 500 employees. These types of small businesses represent 99.9% of all businesses in the United States, which translates to 32.5 million businesses.

46. Next, the type of small entity described as a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” The Internal Revenue Service (IRS) uses a revenue benchmark of $50,000 or less to delineate its annual electronic filing requirements for small exempt organizations. Nationwide, for tax year 2020, there were approximately 447,689 small exempt organizations in the U.S. reporting revenues of $50,000 or less according to the registration and tax data for exempt organizations available from the IRS.

47. Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” U.S. Census Bureau data from the 2017 Census of Governments indicate there were 90,075 local governmental jurisdictions consisting of general purpose governments and special purpose governments in the United States. Of this number, there were 36,931 general purpose governments (county, municipal, and town or township) with populations of less than 50,000 and 12,040 special purpose governments—independent school districts with enrollment populations of less than 50,000. Accordingly, based on the 2017 U.S. Census of Governments data, we estimate that at least 48,971 entities fall into the category of “small governmental jurisdictions.”

48. Wired Telecommunications Carriers. The U.S. Census Bureau defines this industry as establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired communications networks. Transmission facilities may be based on a single technology or a combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services, wired (cable) audio and video programming distribution, and wired broadband internet services. By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry. Wired Telecommunications Carriers are also referred to as wireline carriers or fixed local service providers.

49. The SBA small business size standard for Wired Telecommunications Carriers classifies firms having 1,500 or fewer employees as small. U.S. Census Bureau data for 2017 show that there were 3,054 firms that operated in this industry for the entire year. Of this number, 2,964 firms operated with fewer than 250 employees. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 5,183 providers that reported they were engaged in the provision of fixed local services. Of these providers, the Commission estimates that 4,737 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, most of these providers can be considered small entities.

50. Local Exchange Carriers (LECs). Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to local exchange services. Providers of these services include both incumbent and competitive local exchange service providers. Wired Telecommunications Carriers is the closest industry with an SBA small business size standard. Wired Telecommunications Carriers are also referred to as wireline carriers or fixed local service providers. The SBA small business size standard for Wired Telecommunications Carriers classifies firms having 1,500 or fewer employees as small. U.S. Census Bureau data for 2017 show that there were 3,054 firms that operated in this industry for the entire year. Of this number, 2,964 firms operated with fewer than 250 employees. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 5,183 providers that reported they were fixed local exchange service providers. Of these providers, the Commission estimates that 4,737 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, most of these providers can be considered small entities.

51. Incumbent Local Exchange Carriers (Incumbent LECs). Neither the Commission nor the SBA have developed a small business size standard specifically for incumbent local exchange carriers. Wired Telecommunications Carriers is the closest industry with an SBA small business size standard. The SBA small business size standard for Wired Telecommunications Carriers classifies firms having 1,500 or fewer employees as small. U.S. Census Bureau data for 2017 show that there were 3,054 firms in this industry that operated for the entire year. Of this number, 2,964 firms operated with fewer than 250 employees. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 1,227 providers that reported they were incumbent local exchange service providers. Of these providers, the Commission estimates that 929 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, the Commission estimates that the majority of incumbent local exchange carriers can be considered small entities.

52. Competitive Local Exchange Carriers (LECs). Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to local exchange services. Providers of these services include several types of competitive local exchange service providers. Wired Telecommunications Carriers is the closest industry with a SBA small business size standard. The SBA small business size standard for Wired Telecommunications Carriers classifies firms having 1,500 or fewer employees as small. U.S. Census Bureau data for 2017 show that there were 3,054 firms that operated in this industry for the entire year. Of this number, 2,964 firms operated with fewer than 250 employees. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 3,956 providers that reported they were competitive local exchange service providers. Of these providers, the Commission estimates that 3,808 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, most of these providers can be considered small entities.

53. We have included small incumbent LECs in this present RFA analysis. As noted above, a “small business” under the RFA is one that, inter alia, meets the pertinent small-business size standard ( e.g., a telephone communications business having 1,500 or fewer employees) and “is not dominant in its field of operation.” The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent LECs are not dominant in their field of operation because any such dominance is not “national” in scope. We have therefore included small incumbent LECs in this RFA analysis, although we emphasize that this RFA action has no effect on Commission analyses and determinations in other, non-RFA contexts.

54. Interexchange Carriers (IXCs). Neither the Commission nor the SBA have developed a small business size standard specifically for Interexchange Carriers. Wired Telecommunications Carriers is the closest industry with a SBA small business size standard. The SBA small business size standard for Wired Telecommunications Carriers classifies firms having 1,500 or fewer employees as small. U.S. Census Bureau data for 2017 show that there were 3,054 firms that operated in this industry for the entire year. Of this number, 2,964 firms operated with fewer than 250 employees. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 151 providers that reported they were engaged in the provision of interexchange services. Of these providers, the Commission estimates that 131 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, the Commission estimates that the majority of providers in this industry can be considered small entities.

55. Cable System Operators (Telecom Act Standard). The Communications Act of 1934, as amended, contains a size standard for a “small cable operator,” which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than one percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” For purposes of the Telecom Act Standard, the Commission determined that a cable system operator that serves fewer than 677,000 subscribers, either directly or through affiliates, will meet the definition of a small cable operator based on the cable subscriber count established in a 2001 Public Notice. Based on industry data, only six cable system operators have more than 677,000 subscribers. Accordingly, the Commission estimates that the majority of cable system operators are small under this size standard. We note however, that the Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million. Therefore, we are unable at this time to estimate with greater precision the number of cable system operators that would qualify as small cable operators under the definition in the Communications Act.

56. Other Toll Carriers. Neither the Commission nor the SBA has developed a definition for small businesses specifically applicable to Other Toll Carriers. This category includes toll carriers that do not fall within the categories of interexchange carriers, operator service providers, prepaid calling card providers, satellite service carriers, or toll resellers. Wired Telecommunications Carriers is the closest industry with a SBA small business size standard. The SBA small business size standard for Wired Telecommunications Carriers classifies firms having 1,500 or fewer employees as small. U.S. Census Bureau data for 2017 show that there were 3,054 firms in this industry that operated for the entire year. Of this number, 2,964 firms operated with fewer than 250 employees. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 115 providers that reported they were engaged in the provision of other toll services. Of these providers, the Commission estimates that 113 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, most of these providers can be considered small entities.

57. Wireless Telecommunications Carriers (except Satellite). This industry comprises establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves. Establishments in this industry have spectrum licenses and provide services using that spectrum, such as cellular services, paging services, wireless internet access, and wireless video services. The SBA size standard for this industry classifies a business as small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show that there were 2,893 firms in this industry that operated for the entire year. Of that number, 2,837 firms employed fewer than 250 employees. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 797 providers that reported they were engaged in the provision of wireless services. Of these providers, the Commission estimates that 715 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, most of these providers can be considered small entities.

58. Satellite Telecommunications. This industry comprises firms “primarily engaged in providing telecommunications services to other establishments in the telecommunications and broadcasting industries by forwarding and receiving communications signals via a system of satellites or reselling satellite telecommunications.” Satellite telecommunications service providers include satellite and earth station operators. The SBA small business size standard for this industry classifies a business with $38.5 million or less in annual receipts as small. U.S. Census Bureau data for 2017 show that 275 firms in this industry operated for the entire year. Of this number, 242 firms had revenue of less than $25 million. 1 Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 71 providers that reported they were engaged in the provision of satellite telecommunications services. Of these providers, the Commission estimates that approximately 48 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, a little more than of these providers can be considered small entities.

59. Local Resellers. Neither the Commission nor the SBA have developed a small business size standard specifically for Local Resellers. Telecommunications Resellers is the closest industry with a SBA small business size standard. The Telecommunications Resellers industry comprises establishments engaged in purchasing access and network capacity from owners and operators of telecommunications networks and reselling wired and wireless telecommunications services (except satellite) to businesses and households. Establishments in this industry resell telecommunications; they do not operate transmission facilities and infrastructure. Mobile virtual network operators (MVNOs) are included in this industry. The SBA small business size standard for Telecommunications Resellers classifies a business as small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show that 1,386 firms in this industry provided resale services for the entire year. Of that number, 1,375 firms operated with fewer than 250 employees. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 293 providers that reported they were engaged in the provision of local resale services. Of these providers, the Commission estimates that 289 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, most of these providers can be considered small entities.

60. Toll Resellers. Neither the Commission nor the SBA have developed a small business size standard specifically for Toll Resellers. Telecommunications Resellers is the closest industry with an SBA small business size standard. The Telecommunications Resellers industry comprises establishments engaged in purchasing access and network capacity from owners and operators of telecommunications networks and reselling wired and wireless telecommunications services (except satellite) to businesses and households. Establishments in this industry resell telecommunications; they do not operate transmission facilities and infrastructure. Mobile virtual network operators (MVNOs) are included in this industry. The SBA small business size standard for Telecommunications Resellers classifies a business as small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show that 1,386 firms in this industry provided resale services for the entire year. Of that number, 1,375 firms operated with fewer than 250 employees. Additionally, based on Commission data in the 2022 Universal Service Monitoring Report, as of December 31, 2021, there were 457 providers that reported they were engaged in the provision of toll services. Of these providers, the Commission estimates that 438 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, most of these providers can be considered small entities.

61. All Other Telecommunications. This industry is comprised of establishments primarily engaged in providing specialized telecommunications services, such as satellite tracking, communications telemetry, and radar station operation. This industry also includes establishments primarily engaged in providing satellite terminal stations and associated facilities connected with one or more terrestrial systems and capable of transmitting telecommunications to, and receiving telecommunications from, satellite systems. Providers of internet services ( e.g. dial-up ISPs) or voice over internet protocol (VoIP) services, via client-supplied telecommunications connections are also included in this industry. The SBA small business size standard for this industry classifies firms with annual receipts of $35 million or less as small. U.S. Census Bureau data for 2017 show that there were 1,079 firms in this industry that operated for the entire year. Of those firms, 1,039 had revenue of less than $25 million. Based on this data, the Commission estimates that the majority of “All Other Telecommunications” firms can be considered small.

62. The Further Notice proposes two sets of affirmative obligations for broadband providers in furtherance of our mandate to facilitate equal access to broadband internet access service, including by preventing digital discrimination of access by requiring broadband providers to: (1) submit an annual, publicly available supplement to the Broadband Data Collection (BDC) describing, on a state-by-state or territory-by-territory basis, any large-scale broadband deployment, upgrade, and maintenance projects that were completed or substantially completed during the preceding calendar year and the communities served by such projects; and (2) establish a mandatory internal compliance program requiring regular internal assessment of (a) what communities are served by recent, pending and planned large-scale projects and (b) whether the provider's broadband-related policies and practices might differentially impact consumers' access to broadband without adequate technical or economic justification.

63. The Further Notice proposes to require the annual report as a supplement to the year-end BDC, and we assume that broadband providers would use the same criteria and data fields that are used in the BDC. The Commission seeks comment on whether the experts who certify the BDC submissions should also be required to certify the proposed annual report. The Commission also proposes that each provider adopt and maintain a formal internal compliance program that includes, at a minimum, elements from previously effective compliance programs: (1) developing and implementing written policies and procedures; (2) designating a compliance officer and/or compliance committee; (3) conducting effective training and education regarding the purposes and operation of the compliance program; (4) developing effective lines of reporting and communication; and (5) conducting internal monitoring and auditing. We propose to grant each broadband provider the flexibility to develop and maintain a plan that contains the required elements and serves our intended purposes without prescribing a particular formula as to how each required element should be implemented.

64. The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): “(1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rules for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.”

65. The Further Notice seeks comment on whether any of the proposed filing, recordkeeping and reporting requirements can be minimized for small entities. For example, we request comment on whether existing data may be used with or in place of the proposed annual report to promote transparency in broadband investments. We also seeks comment on whether any broadband providers should be exempted from the requirement to submit an annual report or to implement and maintain an internal compliance program based on their size, footprint, or service area, including rural and Tribal areas. Finally, the Commission seeks comment on whether any of the costs associated with our digital discrimination of access compliance requirements can be alleviated for small entities.

None.

This is a summary of the Commission's Second Further Notice of Proposed Rulemaking ( FNPRM ), ET Docket No. 13-115 and RM-11341; FCC 23-76, adopted on September 21, 2023 and released on September 22, 2023. The full text of this document is available for public inspection and can be downloaded at: https://docs.fcc.gov/public/attachments/FCC-23-76A1.pdf. Alternative formats are available for people with disabilities (Braille, large print, electronic files, audio format) by sending an email to fcc504@fcc.gov or calling the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

The proceeding this Notice initiates shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. 1 Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with rule 1.1206(b). In proceedings governed by rule 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format ( e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

Paperwork Reduction Act. This document may contain proposed modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4)), we seek specific comment on how we might further reduce the information collection burden for small business concerns with fewer than 25 employees.

Initial Regulatory Flexibility Analysis. As required by the Regulatory Flexibility Act, the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities of the proposals addressed in this Second Further Notice of Proposed Rulemaking. The IRFA is set forth in Appendix E of the FCC document found at https://docs.fcc.gov/public/attachments/FCC-23-76A1.pdf. Written public comments are requested on the IRFA. These comments must be filed in accordance with the same filing deadlines for comments on the Second Further Notice of Proposed Rulemaking, and should have a separate and distinct heading designating them as responses to the IRFA.

Providing Accountability Through Transparency Act: The Providing Accountability Through Transparency Act requires each agency, in providing notice of a rulemaking, to post online a brief plain-language summary of the proposed rule. Accordingly, the Commission will publish the required summary of the Second Further Notice of Proposed Rulemaking at https://www.fcc.gov/proposed-rulemakings.

NTIA has requested that the Commission add three footnotes to the Allocation Table to address the use of spectrum by manned and unmanned spacecraft during space missions. The text of these requested footnotes is as follows:

Draft footnote USxxx applies to emergency transmissions to and from manned spacecraft in two portions of the 2200-2290 MHz band as well as the 2025-2110 MHz and 2110-2120 MHz bands. The Commission proposes to add this footnote to the allocations table recognizing the importance of emergency communications to safeguard human life during manned space missions. The Commission seeks comment on this proposal. Because emergency communications from manned spacecraft are likely to occur infrequently the Commission tentatively concludes that making this spectrum available for this purpose will not present a significant interference risk to other users of these bands. As the 2200-2290 MHz band has a space operation allocation in the space-to-earth direction, permitting transmissions from spacecraft is appropriate. The 2025-2110 MHz band has a primary Federal space operations allocation in the Earth-to-space direction which is consistent with making transmissions to manned spacecraft. The 2110-2120 MHz band has a primary space research service (deep space) (Earth-to-space) allocation at Goldstone California. Given that use of the 2110-2120 MHz for space transmissions is currently limited to this one location, should USXXX have a similar limitation on use of this band? Should any other restrictions be placed on the use of these bands for emergency communications for manned spacecraft to avoid harmful interference from occurring to other users of these bands?

Draft footnote USyyy applies to transmissions to ground stations by non-Federal spacecraft transporting crew to and from the International Space Station (ISS). NASA currently has contracts with SpaceX and Boeing to shuttle crew members to the ISS. There is currently a federal Space Operation space-to-Earth allocation for the 2200-2290 MHz band, but the non-federal Space Operation allocation for this band is limited to use for pre-launch testing and space launch operations and therefore does not permit transmissions by crew transport spacecraft after the launch phase of the mission. Given the importance of reliable communications in safeguarding human life during manned space missions, the Commission proposes to add this footnote to the Allocation Table. The Commission tentatively concludes that the power flux limits on these transmissions will prevent interference from occurring to receivers on the earth's surface from these transmissions. The Commission seeks comment on this proposal.

Draft footnote USzzz applies to spacecraft that are transmitting in portions of the 2200-2290 MHz band within 30 kilometers of the ISS. NASA has contracts with commercial companies to transport both supplies and crew to the ISS. These spacecraft need to communicate with the ISS when they are docking. As the Space Operation allocation for the 2200-2290 MHz band is limited to use for pre-launch testing and space launch operations, there is no allocation that permits these non-Federal spacecraft to communicate with the ISS in this band. The Commission proposes to add this footnote to the Allocation Table in recognition of the importance of these space missions as well as the limited number of such missions which should present a minimal risk of interference occurring to other users of the band. As with USyyy, the Commission tentatively concludes that the power flux limits on these transmissions will prevent interference from occurring to receivers on the earth's surface from these transmissions. The Commission seeks comment on this proposal.

NASA has adopted a transition plan that envisions deorbiting the ISS in early 2031. Prior to deorbiting the ISS, NASA intends to purchase crew time from at least two Commercial LEO Destinations (CLDs)— i.e., private space stations. As the projected lifetime of the ISS is now less than eight years, the Commission seeks comment on whether the new proposed footnotes USyyy and USzzz should be limited to spacecraft traveling to the ISS. Should these footnotes also apply to future manned space stations that are operated by commercial entities? Should they be limited to manned space stations only in low earth orbit or apply more generally to manned space stations anywhere beyond the Earth's atmosphere?

In this FNPRM the Commission continues its efforts to support the expanding activities of the commercial space sector that benefit the public interest. Specifically, the Commission focuses on the question of spectrum allocation and licensing processes for certain post-space launch activities, particularly with respect to certain space operations communications currently addressed through experimental licensing, such as crew or cargo capsules destined for the International Space Station (ISS), or similar operations planned for the future, such as spectrum requirements for commercial crewed space stations. Commenters also raised a number of issues that overlap the topics currently being considered in the Space Innovation; Facilitating Capabilities for In-space Servicing, Assembly, and Manufacturing proceeding (FCC 22-66, IB Dockets 22-271, 22-272). This broader range of topics will be addressed separately and concurrently with that proceeding, as noted in the accompanying Second Report and Order.

Spectrum Allocation for Certain Post-Space Launch Payload Operations. The Commission seeks further comment on whether to include new spectrum allocations in specific bands for communications with cargo and crew capsules and payload communications with the ISS and other crewed space stations. In the FNPRM the Commission sought comment on whether there are improvements to the licensing process that could facilitate more routine licensing for certain payload activities currently addressed through experimental licensing. Specifically, the Commission noted the current use by SpaceX of S-band frequencies for cargo and crew capsules and links with the ISS as well as use by Orbital Sciences Corporation, a Northrop Grumman Systems Corporation Affiliate, of 2287.5 MHz (space-to-Earth) as well as 2287.5 MHz for links between the Cygnus spacecraft and TDRSS, and 2203.2 MHz for links between the Cygnus and the ISS. The Commission sought comment on whether any changes to the Table of Frequency Allocations being adopted or proposed for the 2025-2110 MHz and 2200-2290 MHz frequency bands were needed to provide for these cargo and crew capsule communications, what are the spectrum requirements for such operations, and if there are other frequency bands that the Commission should also consider for such uses.

In response, SpaceX noted that it has, through the STA process, used the 2025-2110 MHz band for its Dragon capsule to communicate with the ISS and TDRSS, and supports an expanded approach for 2200-2290 MHz band, which would alleviate the need for seeking an STA to cover communication between SpaceX's Dragon and the ISS and TDRSS. Northrop Grumman also noted its use of the 2200-2290 MHz band for ISS-related communications and supports the inclusion of payload operations in the allocation for this band, which is used by its Cygnus mission. Northrop Grumman also suggested that the Commission adopt a fleet licensing process for payload activities, in specific for ISS-related activities, such as its Cygnus mission.

Other commenters supported allocations in the S-band as well as the L-band and X-band for OOS and RPO operations generally. Industry Participants assert that slightly expanding the 2200-2290 MHz and 2025-2110 MHz allocations to include RPO alongside space launch and reentry “would provide a safer space environment for time-critical RPO communications, where failure can result in loss of spacecraft, termination of a mission, and potentially loss of human lives.” They also note that commercial operators have already invested in technology that supports OOS operations in the S-band. Black Sky suggests opening the band for all on-orbit missions to put the U.S. industry on an equal footing with international operators. Spaceflight recommended that the Commission consider 8025-8400 MHz (X-band) and 1610-1626.5 MHz (L-band) for secondary allocation for payload operations specifically. In response to Spaceflight's suggestion for allocation in the L-band, Globalstar asserts that allocation for inter satellite links and space-to-space communication between a launch vehicle and satellites in the L-band is unnecessary and should continue to be authorized only on an experimental basis. In particular Globalstar focuses on the Big LEO band where Globalstar operates and has concerns of harmful interference. Federal agencies were generally opposed to changing the status of the S-band for payload operations as discussed in the accompanying Second Report and Order, however NTIA, NASA, DOD, and DOC note that the 2360-2395 MHz band could be used as an alternative to expanding allocation in 2200-2290 MHz band. The Commission considers this alternative in further discussion below.

As discussed in the accompanying Second Report and Order, the Commission concludes that deliberations for providing S-band, or other possible bands (such as L-band and X-band suggestions by Spaceflight), allocation for OOS/RPO more generally be continued via the ongoing ISAM proceeding. However, the Commission seeks further comment on possible necessary changes to the Table of Frequency Allocations to account for space-to-space communications between a crew or cargo capsule and crewed space stations, including in bands outside the S-band. Do the three footnotes requested by NTIA meet this need? Should the Commission adopt an allocation for ISS-related space-to-space communications in this proceeding? Should the Commission expand such an allocation to account for future crewed space stations and operations not connected to the ISS? Should the rules addressing these operations be included in part 25 of the FCC's rules?

Suborbital Spaceflight Operations. Additionally, the Commission seeks further comment on spectrum allocation and licensing needs related to suborbital spaceflight. Are there aspects of suborbital commercial spaceflight that fall outside of the definition the Commission has adopted for space launch operations that requires further licensing and spectrum allocation considerations? In response to the FNPRM, Virgin Galactic noted its use, through experimental licensing, of the VHF band, L-band, and S-band for its suborbital flights and suggested that the Commission develop and adopt rules allowing allocation for commercial spaceflight operations in these bands. Specifically, Virgin Galactic has operated in the 123.225 MHz, 123.275 MHz, 123.375 MHz, 123.450 MHz, and 123.525 MHz (VHF) frequencies, the 1445.5 MHz, 1451.5 MHz, 1462.5 MHz, 1470.5 MHz 1480.5 MHz (L-band) frequencies, and the 2360-2390 MHz (S-band) frequencies. Communications in these bands have included telemetry as well as video and voice communications. The Second Report and Order the Commission adopted has limited use of the S-band to telemetry and tracking communications for launch under part 26. Should the Commission establish allocations beyond experimental or STA licensing for voice or video communications for these types of crewed suborbital spaceflight operations?

In further considering communication related to crewed suborbital operations the Commission notes the importance of safety of life communications. Currently, operators who obtain experimental licensing approvals or STAs for these activities are communicating on a non-protected, non-interference basis and must cease operations in the event interference with a primary or secondary allocated operator occurs. The Commission seeks comment on how it should ensure a more permanent level of protection for suborbital spaceflight operation communications, while recognizing the need to avoid harmful interference with other important operations in already encumbered bands. Should any of the portions of the VHF, L-band, or S-band that have been authorized experimentally for communications beyond telemetry be allocated for suborbital spaceflight operations on a primary or secondary basis? Are there other bands beyond those the Commission is considering today that might be suitable for these operations?

Three frequencies in the 2360-2395 MHz band are available for both Federal and non-Federal telemetry and telecommand operations of launch vehicles. Beyond these three frequencies, the band is assigned primarily for aeronautical telemetry and telecommand operations for flight testing of aircraft and missiles. In the FNPRM, the Commission requested comment on changes that it could take in administering the 2360-2395 MHz space launch rules. For example, the Commission sought comment on whether it should administer the 2360-2395 MHz space launch use, which is currently regulated under subpart J of the Commission's part 87 rules, under the same rule part as the commercial space launch rules applicable to the 2200-2290 MHz band adopted in the Second R&O or retain the current part 87 designation.

In response to the FNPRM, certain commenters filed in support of expanding space launch use in the 2360-2395 MHz band. For example, SpaceX argues that uses of the band should extend to the full range of space operations, while Virgin Galactic encourages the Commission to ensure that any primary allocation of the band, as well as associated service and technical rules, facilitate telemetry and video downlink, which it states is consistent with Virgin Galactic's use of the spectrum to monitor the health and safety of its spaceflight participants and crew. NTIA, NASA, and DOD advocate the use of the 2360-2395 MHz band as an alternative to the 2200-2290 MHz and 2025-2110 MHz bands, arguing that the three existing frequencies in the 2360-2395 MHz band provide additional spectrum.

AFTRCC, however, argues that there should not be an expansion of the band and urges the Commission to limit the allocation in that band to just the three channels already allocated for space launches, and avoid proposing allocations for space operations that include bands needed for flight testing and space launches. In support, AFTRCC asserts that space launches create large interference cones to flight test operations, and that even a few seconds of interference could disrupt the most critical portions of a flight test and would add a significant risk factor to aircraft flight tests in this band. Similarly, Boeing advises that the Commission should exercise caution with respect to the use of additional portions of the 2360-2395 MHz band for launch operations or in-orbit activities. Boeing asserts that the greater 2360-2395 MHz band is heavily used to support non-federal flight test operations in locations throughout the United States, and that use of the band by commercial aircraft manufacturers is intensive and increasing.

The Commission seeks further comment on expanding the use of the 2360-2395 MHz band, both in the context of additional uses to the band as well as expanding use in the band beyond the three frequencies currently designated. While the Commission is aware that this band is heavily used for flight test purposes and agrees that it should proceed cautiously with respect to measures that have the potential to introduce additional interference to operations in the band, the Commission also recognizes that the 2200-2290 MHz and 2025-2110 MHz bands may not accommodate the increasing numbers of operations in the future. While the Commission finds that providing space launch operators with increased certainty regarding access to the 2200-2290 MHz and 2025-2110 MHz band is in the public interest and that careful coordination will be effective in enabling use of these bands, the record supports further review of additional spectrum options. Accordingly, the Commission seeks to better understand the current use of the 2360-2395 MHz band. The Commission seeks information on how both flight testing and launch operations in the band are coordinated and conducted, and whether there are measures that could help increase use by space launch operations without increasing the risk of interference to flight test operations. For example, space launch operations in the band are subject to pre-grant frequency coordination, but do not have a coordination requirement once an authorization is granted. Would revising the 2360-2395 MHz band rules to apply provisions that are now applicable to the 2200-2290 MHz and 2025-2110 MHz band, including the per launch coordination requirement, help to facilitate increased use of space launch operations in the 2360-2395 MHz band?

Further, the Commission received limited comment on how to administer rules relating to the 2360-2395 MHz band, in particular comment regarding whether and how to harmonize existing 2360-2395 MHz licensing and technical rules with rules now applicable to the 2200-2290 MHz and 2025-2110 MHz band. Accordingly, the Commission seeks further comment on certain 2360-2395 MHz issues that were first raised in the FNPRM. The Commission requests additional comment on how best to administer the space launch rules for this band. Should the Commission incorporate the 2360-2395 MHz space launch use into new part 26 or should it retain the part 87 designation? If the Commission administers the 2360-2395 MHz space launch use under the new rule part, should the Commission revises its rules to apply the same non-exclusive licensing scheme the Commission adopts today or retain the existing licensing framework provided under the current part 87 flight testing rules? In that event, should the Commission continues to apply the technical rules currently applicable to these services? The Commission also notes that space launch telemetry and telecommand operations in the 2360-2395 MHz band occur under a Mobile allocation. The Commission seeks further comment on whether it should add a primary Space Operation allocation to the band, subject to the same restrictions as apply to such operations under the Mobile allocation as specified in footnote US276 of the U.S. Table. Further, Industry Participants state that, while they appreciate the suggestion of increased 2360-2395 MHz band use in light of congestion in the S-band, the International Table of Frequency Allocations reserves this band for Fixed Service, Mobile Service, Amateur, and Radiolocation services, and consequently it would be necessary to modify that allocation to permit use of that band at the international level. Industry Participants state that a failure to obtain such a modification would be a hardship for on-orbit operators seeking mission support from non-U.S. ground stations. The Commission requests comment regarding this issue.

With respect to additional spectrum options for space launch operations, Virgin Galactic suggests that the Commission expand the use of the 1435-1525 MHz band for telemetry and safety of flight during spaceflight operations. As in the case of the 2360-2395 MHz band, the 1435-1525 MHz band is assigned primarily for aeronautical telemetry and telecommand functions associated with flight testing. Space launch and reentry operations are permissible uses of the band. AFTRCC, however, argues that this band is the “workhorse spectrum” for aeronautical flight testing, and that interference with sensitive flight test equipment risks pilot safety and the success of test maneuvers. Accordingly, says AFTRCC, this band should be reserved for aeronautical mobile telemetry uses. The Commission seeks comment on whether the 1435-1525 MHz band can effectively accommodate space launch operations, or whether such use should be discouraged despite being permissible under our rules. As in the case with the 2360-2395 MHz band above, the Commission seeks information regarding the current usage of this band, how operations are conducted and coordinated, and whether there are measures that may be taken to successfully integrate space launch use along with flight test operations. Would per launch coordination including an enhanced scheduling mechanism be helpful? To the extent that commenters agree that space launch activities can occur along with flight test operations, the Commission request that commenters also speak to any changes—similar to those discussed above for the 2360-2395 MHz band—the Commission should make to harmonize any space launch use in this band with rules applicable to the 2200-2290 MHz and 2025-2110 MHz bands. However, in the event that commenters believe that increased use of either of these bands for space launch uses should not be accommodated, the Commission requests comment on other spectrum bands that may be appropriate candidates.

Accordingly, it is ordered that pursuant to Sections 1, 2, 4(i), 5(c), 301, 303(c), 303(f), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 155(c), 301, 303(c), 303(f), and 303(r), and section 1.411 of the Commission's rules, 47 CFR 1.411, this Second Report and Order and Second Further Notice of Proposed Rulemaking is hereby adopted .

It is further ordered that the Office of the Secretary, Reference Information Center, shall send a copy of the Second Report and Order and Second Further Notice of Proposed Rulemaking including the Final Regulatory Flexibility Analysis and the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 2 as follows:

(c) * * *

(96) * * *

(i) USxxx Use of the bands 2290-2293 MHz and 2297-2300 MHz by Federal and non-Federal space stations may be authorized on a primary basis for the specific purpose of emergency transmissions from manned spacecraft used in the exploration and use of outer space, including the Moon and other celestial bodies. This allocation is restricted to emergency transmissions from manned spacecraft when experiencing emergency situations. Additionally, the bands 2025-2110 MHz and 2110-2120 MHz may also be authorized on a primary basis for transmissions of related commands to the spacecraft. Such operations should be conducted in accordance with Recommendation ITU-R SA.1863.

(ii) USyyy In the band 2213.5-2218.5 MHz, non-Federal space stations operating in the space operation service providing transportation service of crew to and from the International Space Station, may be authorized on a primary basis to transmit in the space-to-Earth direction, to authorized receiving stations, subject to such conditions as may be applied on a case-by-case basis. Such transmissions shall not cause harmful interference to authorized Federal stations. The power flux-density at the Earth's surface from such emissions from these non-Federal stations shall not exceed −144 to −154 dBW/m 2 /4 kHz, depending on the angle of arrival, in accordance with ITU Radio Regulation No. 21.16.

(iii) USzzz In the band 2200.2-2206.2 MHz, non-Federal space stations operating in the space operation service may be authorized on a primary basis to transmit to the International Space Station (ISS) while within 30 km of the ISS, subject to such conditions as may be applied on a case-by-case basis. Such transmissions shall not cause harmful interference to authorized Federal stations. The power-flux-density of such emissions at the Earth's surface from these non-Federal stations shall not exceed −144 to −154 dBW/m 2 /4 kHz, depending on the angle of arrival, in accordance with ITU Radio Regulation No. 21.16. ITU Radio Regulation No. 5.392 also applies.