Background

Non-volatile Particulate Matter (nvPM) is a standard for measuring the amount of solid particles ( e.g. soot, etc. ) emitted by an aircraft. The Environmental Protection Agency (EPA) has adopted nvPM-based standards for aircraft engine emissions and certification test procedures to replace the old “Smoke Number” (SN) standard. 1 On May 24, 2024, the Federal Aviation Administration (FAA) implemented EPA's nvPM standard in Control of Non-Volatile Particulate Matter From Aircraft Engines: Emission Standards and Test Procedures (89 FR 31078).

The FAA was statutorily required ( see 42 U.S.C. 7572; Clean Air Act sec. 232) to incorporate the EPA's nvPM emissions standards into its own regulations and apply the regulatory requirements that will allow applicants to demonstrate compliance with the emissions standards at the time of engine airworthiness certification. Because the FAA does not have authority to make changes to the standards or procedures adopted by the EPA, and because the EPA issued its proposed rule for notice and sought public comment on these standards and test procedures prior to promulgating them on November 23, 2022, the FAA published the standards as a final rule with request for comment instead of seeking comment beforehand ( see 5 U.S.C. 533(b)(3)(B), outlining the requirements under the Administrative Procedure Act for waiving prior notice and comment in informal rulemaking).

In its final rule, the FAA requested comment from interested parties regarding the parts of that rulemaking that adopted the certification regulations in 14 CFR part 34 and implemented them at the time of aircraft engine certification. This document is a response to those comments.

The FAA received six comments on the rule, addressing several issues. The FAA received comments from five organizations and an individual.

Many comments raised the issue of compliance dates. The rule was originally published without a compliance date, but a compliance date of 90 days after the effective date of May 24, 2024, was added to the rule when the FAA published a correction to the final rule on May 7, 2024. 2 A trade association wrote a comment in support of the standard. One commenter raised issues of environmental justice that are out of scope regarding this FAA rulemaking, as the FAA lacks authority to change EPA emissions standards.

The FAA has determined that no changes to the final rule are necessary based on the comments received.

One commenter suggested that the FAA's Aviation Environmental Design Tool (AEDT) model include all particulate matter including ultrafine particulates (UFP) for mass and made additional comments on other various subjects including: EPA addressing environmental justice, EPA certification of engines, EPA technology following regulations, EPA regulation of UFP, limiting engines that may operate at a single location, health analysis for airports, and data input to models.

The nvPM standards adopted by the FAA include UFP, which are defined as particles in the atmosphere smaller than 100 nanometers in diameter. Particulate emissions from aircraft engines covered by this rule range from approximately 5 to 40 nanometers (nm) in diameter. The EPA and FAA worked together to implement nvPM regulations per the Clean Air Act (CAA) and the United States' responsibilities under the International Civil Aviation Organization (ICAO) Conventions. The other subjects this commenter raised are beyond the FAA's authority and are addressed in the EPA final rule. 3

One commenter stated that the FAA does not have the authority to change the emissions standards adopted by the EPA. That commenter argued that the FAA “changed the nvPM standard set by the EPA in 40 CFR 1031.140(f)” by adopting thrust (F N ) as the correlating factor instead of the combustor inlet temperature (T 3 ) as adopted by the International Civil Aviation Organization (ICAO). It referenced “Section 4.2.2 of ICAO ETM Doc 9501, Fifth Edition, 2023 and EPA 40 CFR 1031.140(f)” as evidence.

The EPA limits are based on thrust, not combustor inlet temperature. See 40 CFR 1031.140(f). The EPA limits for nvPM are contained in 40 CFR 1030.60(b), which sets particulate limits in terms of particulate mass per kilonewton (maximum rated thrust output). These regulations do not set T 3 as the correlating factor.

Furthermore, in ICAO Annex 16 Volume II, Section 4.2.2, all applicable limits are stated in terms of “maximum rated thrust” not “T 3 ”. In 40 CFR 1031.140(f) of the EPA regulations, only the equipment and procedures of Annex 16 Volume II are incorporated by reference. The regulation states: “Use the equipment and procedures specified in ICAO Appendix 7 and ICAO Appendix 6, as applicable.” There is no mention of any limits in this section.

Emissions testing using T 3 is acceptable when an approved thrust vs T 3 correlation curve is available for the engine being tested.

Two commenters made the following identical statement: “Regarding the rule being effective May 24, 2024; this does not provide adequate time to compile, submit, approve, and revise the required FAA paperwork given the multiple engines in production by multiple Aircraft Engine manufacturers feeding into one FAA office.” In addition, the same two commenters also stated concerns about compiling the information required by 14 CFR 34.73(e) for submittal.

Although the initial rule did lack an implementation timeframe for manufacturers to show compliance, the FAA subsequently issued an amendment to the rule change, Amendment 7A, that added an implementation requirement time of 90 days after the effectivity date of the rule as 14 CFR 34.25(d).

The data reporting requirements shown in § 34.73(e) list the data currently needed to show compliance. This is the same data needed to determine the final approved values for ICAO Annex 16 Volume II. The FAA needs this data to verify the results and conduct appropriate oversight when reviewing submitted reports for approval. Reports showing compliance should include the data used for that showing and how it was obtained. Manufacturers that have already submitted compliance reports to a foreign authority can use data compiled for those reports to show compliance with this requirement. Therefore, the FAA concludes 90 days to be sufficient.

In response to Amendment 7A, another commenter stated, “Most engine manufactures have already shown EASA that their in-production aircraft engines meet ICAO CAEP/10 and CAEP/11 nvPM standards equivalent to the nvPM limits described in 14 CFR 34.25 at Amendment 7A.” The commenter requested that the compliance deadline be extended to 240 days after the effectivity date, arguing that, since most manufacturers have already shown EASA that their engines meet ICAO Annex 16 Volume II, an even later deadline to show compliance with the FAA rule would not harm the public. The commenter also stated its perception that this rule amendment was intended to apply to in-production aircraft as well as engines.

This rule does not hold up shipment of aircraft, because part 34 applies only to engines, not aircraft. Once the engines were type certificated and shipped, they became valid engines. There is a misperception that this requirement extends to airplane manufacturing as well as engines. The applicability section in 14 CFR 34.25 only considers the manufacturer date of the engines. These requirements are only applicable to engines produced by the engine manufacturer after January 1, 2023.

Moreover, as noted above, manufacturers that have already submitted compliance reports to a foreign authority can use data compiled for those reports to show compliance with this requirement. Therefore, the FAA concludes the 90-day deadline to show compliance with this rule to be sufficient.

A commenter asked why the FAA included a requirement for a 90% confidence interval at 14 CFR 34.73(d), since this requirement is not included in ICAO Annex 16 Volume II, Appendix 1.

The FAA concludes it is in harmony with the international community because ICAO Annex 16 Volume II, Appendix 6, “Compliance Procedure for Gaseous Emissions, Smoke, and Particulate Matter Emissions,” recommends demonstrating a 90% confidence interval. The FAA concludes this recommendation should be mandatory to ensure that the data provided to the FAA is appropriately representative of the population. Under United States domestic law, all mandatory regulations must be in the CFR, not supplementary guidance documents. Therefore, the FAA has included this requirement here.

One commentor questioned the necessity of correcting for standard temperature and pressure, as indicated in the preamble of the rule, and the commentor posed the same comment on 14 CFR 34.73.

The FAA notes that 14 CFR 34.73 correctly refers to the standard temperature and pressure (STP) corrections detailed in ICAO Annex 16 Volume II, Appendix 7. Section 3.1 of that Appendix requires the applicant to “determine nvPM at STP”. Per this requirement, nvPM must be corrected to STP. The FAA also notes that corrections to standard temperature and pressure are generally automatically included in the instrumentation.

Some commenters pointed out several typographical errors (“typos”) in the preamble of the final rule, which the FAA acknowledges. They are:

• The preamble refers to ICAO Annex 16 Volume II, Appendix 1, rather than to the correct reference of Appendix 7. (89 FR 31082)

• The end applicability date of the SN standard is given as January 1, 2023, as opposed to January 1, 2020. (89 FR 31087)

• The FAA preamble reads “manufactures” in a line of text that should read manufacturers.” (89 FR 31083)

A commenter also observed that the definition for “reference day condition” includes the phrase “. . . the measured smoke, nvPM, and gaseous emissions must be corrected.” 14 CFR. 34.1 (“Reference day condition”). The FAA acknowledges that “smoke” was erroneously included in this definition, as there are no corrections to reference day conditions required for smoke measurements. However, regarding nvPM emissions, the FAA notes that corrections to reference day conditions are required, and that the measurement instrumentation corrects to reference day corrections.

For clarity, a commenter suggested that the internal references in § 34.73(c)(1) include a greater level of detail, specifically:

• Paragraph (c)(1)(i)(B), when referencing “paragraph (c)(1),” should reference “paragraph (c)(1)(i)(A).”

• Paragraph (c)(1)(ii)(B), when referencing “paragraph (c)(1),” should reference “paragraph (c)(1)(ii)(A).”

• Paragraph (c)(1)(ii)(C), when referencing “paragraph (c)(1),” should reference “paragraph (c)(1)(ii)(B).”

• Paragraph (c)(1)(iii)(B), when referencing “paragraph (c)(1),” should reference “paragraph (c)(1)(iii)(A).”

The FAA thanks this commentor for its detailed and accurate suggestions. The FAA is declining to make these suggestions at this time, as such changes are not necessary.

A commenter noted that 14 CFR 37.73(c)(1)(iii)(D) requires an “average” of engines tested, but “[w]hat is missing is saying that this average has to be done if several engines have been tested.”

The FAA concludes that adding additional text to § 34.73(c)(1)(iii)(D) is not necessary as taking the average of a single engine does not change the results of the calculations.

Finally, the FAA received positive feedback from multiple organizations.

After consideration of the comments submitted in response to the final rule with request for comment, the FAA has determined that no further rulemaking action is necessary. Therefore, amendment 34-7 remains in effect.

An electronic copy of a rulemaking document may be obtained by using the internet—

1. Search the Federal eRulemaking Portal ( www.regulations.gov );

2. Visit the FAA's Regulations and Policies web page at www.faa.gov/regulations_policies/ or

3. Access the Government Printing Office's web page at  www.gpo.gov/fdsys/.

Copies may also be obtained by sending a request (identified by notice, amendment, or docket number of this rulemaking) to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW, Washington, DC 20591, or by calling (202) 267-9680.

Comments received may be viewed by going to www.regulations.gov and following the online instructions to search the docket number for this action. Anyone is able to search the electronic form of all comments received into any of the FAA's dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.).

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. A small entity with questions regarding this document may contact its local FAA official or the person listed under the FOR FURTHER INFORMATION CONTACT heading at the beginning of the preamble. To find out more about SBREFA on the internet, visit www.faa.gov/regulations_policies/rulemaking/sbre_act/.

The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2024-2537; Project Identifier MCAI-2024-00631-E” at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, 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 final rule 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 final rule.

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 AD 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 AD, 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 AD. Submissions containing CBI should be sent to David Bergeron, 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.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA Emergency AD 2024-0202-E, dated October 22, 2024 (EASA AD 2024-0202-E) (also referred to as the MCAI), to correct an unsafe condition on all Safran Model ARRIUS 2F engines. The MCAI states that an occurrence was reported of an uncommanded IFSD of an ARRIUS 2F engine, followed by a hard landing, and that the following investigation revealed that the IFSD was caused by a missing lubricating and balancing groove on one of the bearings of the FCU fuel pump due to a non-conforming manufacturing process. A subsequent quality analysis identified a population of FCUs possibly affected by the non-conforming manufacturing process. This condition, if not corrected, could result in a significant reduction of the control of a single engine helicopter.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2024-2537.

The FAA reviewed EASA AD 2024-0202-E, which specifies procedures for replacement of the affected parts with serviceable parts. The MCAI also specifies prohibiting installation of affected parts on an engine. 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 the ADDRESSES section.

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 AD after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.

This AD requires accomplishing the actions specified in the material already described, except for any differences identified as exceptions in the regulatory text of this 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, EASA AD 2024-0202-E will be incorporated by reference in this final rule. This AD, therefore, requires compliance with EASA AD 2024-0202-E in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this 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 and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2024-0202-E. Service information required by the EASA AD for compliance is available at regulations.gov under Docket No. FAA-2024-2537.

Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 551 et seq. ) authorizes agencies to dispense with notice and comment procedures for rules when the agency, for “good cause,” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without providing notice and seeking comment prior to issuance. Further, section 553(d) of the APA authorizes agencies to make rules effective in less than thirty days, upon a finding of good cause.

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies forgoing notice and comment prior to adoption of this rule because missing lubricating and balancing grooves on the bearings of the FCU fuel pump, if not corrected, could result in an uncommanded IFSD, and a significant reduction of the control of a single engine helicopter. The FAA has determined that because this condition can occur without warning, these FCUs need to be removed from service within 15 flight hours or 30 days, whichever occurs first after the effective date of this AD. These compliance times are shorter than the time necessary for the public to comment and for publication of the final rule. Accordingly, notice and opportunity for prior public comment are impracticable and contrary to the public interest pursuant to 5 U.S.C. 553(b).

In addition, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days, for the same reasons the FAA found good cause to forgo notice and comment.

The requirements of the Regulatory Flexibility Act (RFA) do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because the FAA has determined that it has good cause to adopt this rule without prior notice and comment, RFA analysis is not required.

The FAA estimates that this AD affects 5 engines installed on helicopters of U.S. registry.

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

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

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

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

For the reasons discussed above, I certify that this AD:

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

(2) Will not affect intrastate aviation in Alaska.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it updates the information in the Austin-Bergstrom International Airport, TX, Class C airspace description to match the FAA NASR database.

During a recent review of the Austin-Bergstrom International Airport, TX, Class C airspace description, the FAA identified that the Austin-Bergstrom International Airport ARP geographic coordinates were incorrect. This action updates the airport ARP geographic coordinates to match the FAA NASR database information and makes minor editorial changes to the airspace description header format. There are no changes to the boundaries, altitudes, or operating requirements of the Class C airspace area resulting from this action.

Class C airspace areas are published in paragraph 4000 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11J, dated July 31, 2024, and effective September 15, 2024. FAA Order JO 7400.11J is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next update to FAA Order JO 7400.11.

FAA Order JO 7400.11J lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This action amends 14 CFR part 71 by updating the Austin-Bergstrom International Airport, TX, Class C airspace description. The airport ARP geographic coordinates are updated from “lat. 30°11′41″ N, long. 97°40′12″ W” to “lat. 30°11′40″ N, long. 97°40′12″ W” to match the FAA NASR database information. Additionally, the airport name is removed from the first line in the text header of the description and replaced by the city location of the airport to follow the current formatting standard.

This action consists of administrative changes only and does not affect the boundaries, altitudes, or operating requirements of the Class C airspace. Therefore, notice and public procedure under 5 U.S.C. 553(b) is unnecessary.

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

The FAA has determined that this action of making administrative changes to the Austin-Bergstrom International Airport, TX, Class C airspace description qualifies for categorical exclusion under the National Environmental Policy Act (42 U.S.C. 4321 et seq. ) and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points). As such, this action is not expected to result in any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. Accordingly, the FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.

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

The final regulations (TD 10009) subject to this correction sets forth amendments to the Income Tax Regulations (26 CFR part 1) under sections 48D and 50(a) of the Internal Revenue Code.

Accordingly, FR Doc. 2024-23857 (TD 10009), appearing on page 84732 in the Federal Register on Wednesday, October 23, 2024, is corrected as follows:

Congress established the Child Pornography Victims Reserve (“Reserve”) to provide defined monetary assistance to eligible individuals who are depicted in child pornography that is the basis for certain convictions under chapter 110 of title 18. The Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018 (“the AVAA” or “the Act”), Public Law 115-299, secs. 4-5, 132 Stat 4383, 4385-88, codified at 18 U.S.C. 2259, 2259A, and 2259B, and 34 U.S.C. 20101(d). Under 18 U.S.C. 2259(d), a United States district court may order payment from the Reserve to a victim of a defendant convicted in Federal court of trafficking in child pornography depicting that victim. The Department, pursuant to this final rule, will make a payment from the Reserve to such child pornography victims based on orders obtained in United States district courts. 1

The Department published an NPRM on June 5, 2023, Implementing the Child Pornography Victims Reserve, 88 FR 36516, proposing to implement the AVAA, and received public comments.

The Department is now issuing this final rule pursuant to 18 U.S.C. 2259B(c), which provides that the Attorney General shall issue regulations to implement the payment of defined monetary assistance out of the Reserve. This final rule outlines procedures for persons to request to apply through the Department for a court order determining eligibility and directing payment of defined monetary assistance. It is not intended to limit how a claimant might seek an order for defined monetary assistance directly from a court.

As set forth in more detail below, if a claimant chooses to proceed through the Department, the Department may present the claimant's application for a court order. (“Claimant” means the person who claims to be a victim of trafficking in child pornography and to be eligible for the defined monetary assistance under 18 U.S.C. 2259(d), and “victim” or “victim of trafficking in child pornography” means a person whom a Federal court has determined, under 18 U.S.C. 2259(d)(1)(B), to be a victim of trafficking in child pornography.) The Department will provide payment from the Reserve to the victim (or an authorized representative, if applicable) pursuant to a court order issued under 18 U.S.C. 2259(d)(1)(C), upon receipt of the order and the requisite information from the claimant following instructions on the Department's website for this program: https://www.justice.gov/DMAVR.

The final rule also sets forth procedures by which persons may submit requests to the Department, including through their attorney, a legal guardian (in the case of claimants under the age of 18 or who are incompetent, incapacitated, or deceased), or a representative authorized by the claimant, which includes a personal representative of an estate (for deceased claimants) (collectively, “authorized representative”). The final rule is procedural in nature, implementing a process by which a claimant may request that the Department facilitate the claimant's request that a court make a determination of eligibility pursuant to the eligibility requirements of the Act. It does not create new rights or impose obligations independent of the statute, and it does not create an attorney-client relationship between the claimant and any Department attorney.

Under Federal law, victims of child pornography offenses are entitled to full and timely restitution from defendants charged and convicted in Federal court, including restitution for losses caused by conduct such as the possession, receipt, viewing, transportation, and distribution of child pornography. See 18 U.S.C. 2259. Restitution is imposed upon an individual criminal defendant by a Federal court in connection with sentencing, and the obligation to pay restitution is part of the defendant's criminal sentence. See id.; see also 18 U.S.C. 3663A. The Federal Government bears the burden of proving that the defendant owes restitution to a victim, although a defendant can agree to pay restitution as part of a plea agreement. In order for a court to impose a restitution obligation on a child pornography trafficking defendant, the Federal Government, represented by the prosecutor, must prove the following:

• Victim status: This element means that the person seeking restitution is a victim, i.e., that the person has been harmed as a result of the commission of a Federal child pornography trafficking crime.

• Losses: This element refers to the amount of losses incurred by the victim, both since the offense took place and that are reasonably projected to be incurred in the future. There is no statutory limit on how much restitution may be ordered to be paid to a victim, but there must be a sufficient evidentiary basis to prove that all of the losses have been or are reasonably projected to be incurred. The statute permits recovery for the following types of losses: medical services relating to physical, psychiatric, or psychological care; physical and occupational therapy or rehabilitation; necessary transportation, temporary housing, and child care expenses; lost income; reasonable attorneys' fees, as well as other costs incurred; and any other relevant losses incurred by the victim. 18 U.S.C. 2259(c)(2). Restitution losses are limited to actual monetary losses and should not be confused with amounts of money a victim might be awarded for pain and suffering or punitive damages in a civil tort lawsuit.

• Causation: As discussed in more detail below, this element requires proof that the losses were caused in the aggregate by the trade in child pornography depicting the victim.

• Amount: In cases where multiple defendants contributed to the victim's losses, the court must determine how much each individual defendant should pay to the victim.

In all Federal cases, restitution is obtained on a case-by-case basis. Because child pornography can be possessed and shared by many different unrelated criminal defendants and distributed repeatedly, a single child pornography trafficking victim may receive restitution orders in hundreds of individual criminal cases being brought in different Federal courts all over the country. Under current law, each of these defendants is ordered to pay some portion of the victim's overall losses. Once the victim has collected payment for the full amount of the victim's losses from one or more defendants, no further restitution orders can be imposed on additional defendants on the victim's behalf unless new losses are incurred. See 18 U.S.C. 2259(b)(2)(C).

In 2009, a victim sought restitution for the first time, not from the individual who sexually abused her and produced and shared the images, but from individuals who subsequently traded and collected those images. A small number of other child pornography victims subsequently sought similar restitution. Federal prosecutors across the country were soon seeking restitution for victims in Federal courts in child pornography possession, receipt, and distribution cases.

Despite the Department's overall success in obtaining orders of restitution for these victims, courts were inconsistent in their approach to restitution claims. Some courts struggled to determine whether an individual defendant convicted of possession, receipt, or distribution proximately caused a victim's losses. If a defendant was only one of thousands who harmed the victim, then some courts indicated that the defendant could not be said to have caused the victim's losses because those losses would be essentially the same if that particular defendant had never committed the crime. On that logic, some courts simply denied the restitution requests. Others demanded a showing as to how much an individual defendant's crime incrementally increased the victim's losses, imposing a generally insurmountable evidentiary burden. Among courts that awarded restitution, many grappled with how to determine the amount that the defendant should pay to the victim.

These issues were brought to the Supreme Court in Paroline v. United States, 572 U.S. 434 (2014). After finding that section 2259 required proof of proximate causation for all the categories of losses referenced in the statute, the Court summed up the problem this way:

To resolve this dilemma, the Court adopted the less demanding aggregate causation standard:

Id. at 458. The Court then considered how district courts might determine the amount a given defendant should pay a victim in restitution. To provide guidance, the Court cited a number of factors courts might consider, including “the number of past criminal defendants found to have contributed to the victim's general losses; . . . whether the defendant reproduced or distributed images of the victim; whether the defendant had any connection to the initial production of the images; how many images of the victim the defendant possessed; and other facts relevant to the defendant's relative causal role.” Id. at 460.

The aggregate causation standard is easily understood and applied. To the extent that restitution is contested, the dispute is often solely over how much a defendant should be ordered to pay a given victim.

Nonetheless, even after Paroline, few victims exercised their right to restitution. It appeared that the process of tracking hundreds of cases around the country over the course of years was too burdensome. Almost all victims seeking restitution in child pornography trafficking cases hire an attorney to help coordinate the logistics. In addition, although the Government bears the burden of proving restitution, in order to submit estimates of future losses, many victims hire psychological experts and economic analysts to help prepare their claims. The necessity of engaging multiple experts has served as a barrier that prevents victims from seeking restitution at all.

Congress therefore enacted the AVAA to create an alternative system to allow victims of trafficking in child pornography to obtain some measure of compensation (called “defined monetary assistance”) without having to prove their losses. The process of obtaining defined monetary assistance is an alternative to the traditional means of seeking restitution as part of a Federal prosecution. Providing the defined monetary assistance alternative is meant to ameliorate the structural impediments that prevent victims from claiming restitution while preserving the option of obtaining full restitution for those who wish to do so. Under the terms of the statute, victims of these types of child pornography offenses can choose whether to present their full restitution claims in court through prosecutors, as is currently done, obtain a one-time payment of defined monetary assistance, or both, depending on the circumstances. The amount of defined monetary assistance in 2019 was $35,000, but the amount is adjusted for inflation over time. 18 U.S.C. 2259(d)(1)(D).

The Act provides that the “Attorney General shall administer” the Reserve. See 18 U.S.C. 2259B(c). The determination regarding victim eligibility for the payment is made by the court. The procedural details of the Department's administration of the Reserve and the substantive law applicable to the court's determination are discussed in Part IV of this preamble.

Notice of the proposed rule was published in the Federal Register on June 5, 2023. Before the comment period closed on August 4, 2023, comments were received from 11 commenters. 2 These comments were largely supportive of the rule and focused primarily on seeking additional information about how the Department plans to implement the rule. The Department has made a few amendments to the rule in response to some of the comments. The Department also amended § 81.55(c) to clarify that claimants should not submit videos, in addition to not submitting images, of child pornography as supporting information because transmitting videos of child pornography could also potentially violate Federal law. A discussion of comments received, and the Department's responses, follows.

1. The AO stated that the proposed rule does “not provide specifics as to the information the Department will require victims to provide as part of th[e] application process” and does “not address how the applications will be presented to the courts for a determination of eligibility.” Another commenter similarly stated that the rule should provide that the Department's website contain certain specified information and be accessible for at least 30 days before “program commencement.”

Response. The proposed rule stated that the Department, through its website, will set out the specific information that a claimant will be required to submit. The Department declines to amend the rule to require that the website be accessible for 30 days before requests for applications to a court can be submitted, given uncertainty about the time it will take to build the new website and portal; requiring a fixed amount of time before submission of requests would delay the ability of eligible victims to submit their requests through the Department if they choose to do so. The Department will address how applications will be presented to the courts through internal guidance. The Department anticipates that it and the AO will continue to collaborate on the implementation of the Reserve.

1. NCMEC stated that the proposed rule is “largely silent . . . regarding the timing and details of the process for when DOJ will present a victim's claim for payment to a federal court” and that, absent more specific deadlines or assurances of promptness, the Department's process may be delayed, which would in turn impede victims from obtaining payment. Two commenters stated that the proposed rule should contain specific time limitations by which the Department will act in connection with a claimant's request for payment from the Reserve.

Response. The statute does not provide any deadline or limitations period for submitting a claim for defined monetary assistance to a court. The Department likewise declines to impose a deadline or limitations period on itself because it lacks sufficient information at this time to do so. It does not know, for example, the number of individuals who will request that the Department apply for an order of defined monetary assistance, the number of claims that will be pending in court at any given moment, or the extent to which the Department will need to adopt additional internal measures to ensure that only those individuals determined by a court to be eligible for payment under the statute receive such payment. The Department does, however, commit itself to taking reasonable measures to ensure prompt payment to eligible individuals. Moreover, and in any event, the procedures set forth in this rule do not limit a claimant's ability to request an order for defined monetary assistance directly from a court.

2. NCMEC stated that the proposed rule does “not provide any details or even basic descriptions of what actual information a survivor will be required to submit to DOJ to support a claim.” Relatedly, NCMEC stated that the proposed rule should make clear that although a victim can fairly be required to provide some information in support of a claim for payment from the Reserve, “the research and effort needed to draft a suitable federal court submission in this situation remains DOJ's responsibility.”

Response. A court will ultimately determine what information is necessary to support a claim for defined monetary assistance, and this rule does not limit a claimant's ability to request an order for defined monetary assistance directly from a court. If a claimant requests that the Department submit an application for an order for defined monetary assistance on the claimant's behalf, and the Department determines under the procedures set forth in this rule that it will do so, the Department will use reasonable efforts to facilitate the submission of the application to the court. In general, where the Department is presenting an application to a court to determine a claimant's eligibility, the research and drafting of the court submission remains the responsibility of the Department attorney representing the Government. However, the claimant is responsible for providing the information to support their claim and for providing responses to follow-up requests for information from the Department.

The proposed rule requested comment on the appropriate criteria to be included in the claim form and noted that, to enable the Department to collect information from claimants to facilitate applications to courts and payments from the Reserve, the Department would submit an information collection request and publish a notice of a new Privacy Act system of records upon publication of the final rule. 88 FR at 36521. These procedural requirements are set forth by law, and the Department declines to change the rule to provide for a different process. Following this process, the Department anticipates posting a “claim form” on its website that will allow claimants (1) to request that the Department present an application to the court or (2) if a claimant already has a court order determining eligibility and directing payment, to provide the information necessary for the Department to facilitate that payment.

The proposed rule further explained that the Department's website will set forth the information that a claimant will be required to submit to the Department in furtherance of a claim for payment from the Reserve. Because the information required may be modified by the courts, the Department needs the flexibility to update its claim form in response to case law as it develops. And because the Department believes that the website will be sufficient to provide appropriate information to claimants, no change will be made to the rule in that respect. The Department notes that, in general, it will collect information to establish the identity of the claimant, the basis for the claim for eligibility for defined monetary assistance, the identity and authority of the person submitting the form, and the identity of any attorney representing the claimant or person submitting the form, if applicable.

3. NCMEC stated that the proposed rule should contain “more specific and concrete language . . . about the efforts” the Department will take to ensure a claimant's privacy. Another commenter also expressed concerns about protections for claimant privacy.

Response. In response to this comment, the Department is revising the final rule to state that the Department will not publicly disclose any claimant's personally identifiable information, except as necessary to process a request or as required by law or court order. More generally, the Department will undertake to protect all victims' privacy consistent with applicable laws, rules, and Department policies and procedures. See, e.g., 18 U.S.C. 3509(d)(1) (providing for confidentiality of information that discloses the name or any other information concerning a child); 18 U.S.C. 3771(a)(8) (stating victims' right to be treated with respect for privacy); see also 5 U.S.C. 552a (Privacy Act).

4. NCMEC stated that the proposed rule “contain[s] no indication of how DOJ will interpret constitutional and statutory disclosure obligations to defendants or whether disclosure of victim information will be handled differently if a claim is submitted to the court after a defendant has already been sentenced.”

Response. The AVAA establishes an entitlement to defined monetary payment to a victim of a “defendant who was convicted of trafficking in child pornography.” 18 U.S.C. 2259(d)(1)(B). The Department interprets the conviction component of this requirement to mean a final judgment of conviction, after sentencing, although the Department may submit an application for an order of defined monetary assistance for the court to decide in conjunction with a defendant's sentencing. The Department does not anticipate handling victim information differently based on whether a defendant has been sentenced. Moreover, the Department cannot opine in advance on how a particular constitutional or statutory provision will apply to the facts of a specific case. The Department will, however, abide by all constitutional and statutory disclosure obligations and, as noted above, protect all victims' privacy consistent with applicable laws, rules, and Department policies and procedures.

5. NCMEC stated that the proposed rule should require the Department to “submit any facially valid application” to the court and “leave it to the court alone to make” eligibility determinations.

Response. The Department declines to modify the rule as suggested. Because the Department is obligated to administer the Reserve in a manner consistent with the AVAA and other applicable law, the Department declines to adopt a requirement that it submit any facially valid application. Instead, the Department will take reasonable steps to ensure that defined monetary assistance is paid only to claimants who qualify for payment under the statute, and it will determine whether to support a claimant's application accordingly. Moreover, the procedures set forth in this rule do not limit a claimant's ability to request an order for defined monetary assistance directly from a court. In addition, the AVAA establishes, and the rule already provides, that courts have the sole authority to determine whether an individual is entitled to payment under the statute.

1. One commenter stated that the proposed rule should provide that the Department must seek to obtain an order of payment within 90 days after the claimant's request is complete, absent extraordinary circumstances.

Response. Due to uncertainty regarding the number of individuals who will request that the Department apply for payment, the number of claims that will be pending at any given moment, and the Department's need to ensure that only those individuals determined by a court to be eligible for payment under the statute receive such payment, the Department has decided not to impose specific timelines on itself. The Department does, however, commit itself to taking reasonable measures to ensure prompt payment to eligible individuals.

2. One commenter suggested that the proposed rule make clear that victims of open or closed (or “completed”) cases are entitled to seek payment and that the Department will consider both open and closed or “completed” cases in determining the claimant's eligibility for payment.

Response. The statute does not distinguish between victims in open and closed cases. The Department has revised the final rule to clarify that victims of open or closed cases are eligible to seek payment under the statute. Although victims in open or closed cases may request that the Department apply for a court order of payment from the Reserve, the requirements for eligibility for payment are established by statute, and satisfaction of those requirements are determined by a court. One of the requirements for eligibility is that the claimant is a victim of a defendant who has been convicted of trafficking in child pornography.

3. One commenter stated that the proposed rule should make clear that if the Department determines that it will recommend against payment to a claimant, the Department: (1) will give the claimant at least 14 days advance notice before informing the court of its position; (2) will meet and confer with the claimant and give meaningful consideration to the claimant's concerns; and (3) will, if the Department maintains its position, inform the claimant that the claimant can seek payment through the court independent of the Department.

Response. The Department has revised the final rule to clarify that if the Department determines that it will recommend against the court ordering payment, the Department will make reasonable efforts to inform the claimant (or the claimant's authorized representative, if applicable) of that recommendation prior to providing that recommendation to the court. However, due to uncertainty regarding the number of individuals who will request that the Department apply for payment, the number of claims that will be pending at any given moment, and the Department's need to ensure that only those individuals determined by a court to be eligible for payment under the statute receive such payment, the Department cannot commit itself to acting within a prescribed time limit. A claimant may submit a new application to the Department to correct shortcomings in an earlier application, so long as the new application contains material, additional information supporting the claimant's eligibility for defined monetary assistance. A claimant may also choose to present an application without proceeding through the Department under this final rule.

4. Two commenters stated that the proposed rule should make clear that payment can be paid to a claimant's representative. One of those commenters further offered that the rule should state what documentary evidence is required for the Department to deem a representative “authorized.”

Response. The Department has revised the final rule to clarify that payment can be made to a victim's authorized representative, where appropriate. See 18 U.S.C. 2259(c)(4) (“In the case of a victim who is under 18 years of age, incompetent, incapacitated, or deceased, the legal guardian of the victim or representative of the victim's estate, another family member, or any other person appointed as suitable by the court, may assume the crime victim's rights under this section.”). The Department's website will provide information concerning the types of documentation that will suffice to prove that a representative is “authorized.”

5. One commenter stated that the proposed rule should, at least with respect to claims supported by a verified Federal judgment or restitution order, provide for a “presumption of eligibility” regarding those claims.

Response. The statute establishes the criteria for eligibility and does not include a presumption of eligibility. A court ultimately determines whether a claimant is eligible.

6. One commenter stated that the proposed rule should make clear “that criminal restitution or civil damages amounts collected before submitting a claim . . . need not be deducted from the defined monetary assistance remitted to the claimant.”

Response. The AVAA contains provisions outlining the relationship between payment from the Reserve and payment in the form of restitution. See 18 U.S.C. 2259(d)(2)-(3). Section 2259(d)(2)(C) specifies that the amount a victim received in defined monetary assistance must be deducted from the total amount of losses subsequently sought in restitution. The Department has added a statement in the rule to make it clear that this statutory deduction applies only to restitution sought after a victim receives defined monetary assistance. The amount of restitution received need not be deducted from the amount of defined monetary assistance. Once a victim has collected restitution in an amount greater than the amount of defined monetary assistance, however, the victim would be ineligible for defined monetary assistance in any amount.

Regarding amounts received before the receipt of defined monetary assistance, section 2259(d)(3) provides that “[a] victim who has collected payment of restitution pursuant to this section in an amount greater than the amount [of defined monetary assistance] shall be ineligible to receive defined monetary assistance.” In preparing this final rule, the Department determined that the discussion regarding this provision in the preamble of the NPRM, see 88 FR at 36519, was incorrect because it assumed that a victim who received restitution in an amount equal to the amount of defined monetary assistance would be ineligible to seek defined monetary assistance. This assumption is incorrect because the statute provides for ineligibility only if the victim has collected restitution in an amount “greater than” the amount of defined monetary assistance. The Department clarifies here that the examples in the preamble of the NPRM were inaccurate and that a victim who has received restitution in an amount less than or equal to the amount of defined monetary assistance may continue to seek the full amount of defined monetary assistance.

7. One commenter stated that the proposed rule should clarify “all” potential reasons that the Department might cite as a basis to decline a request for payment.

Response. The Department is committed to taking reasonable measures to ensure that eligible claimants receive payment from the Reserve, consistent with the statute. Because the Department is unable to predict all possible requests that it might receive, the Department declines to provide an exhaustive list of reasons why the Department would decline a request to support an application for payment. Moreover, only a court, not the Department, can order, or decline to order, payment to a claimant.

8. One commenter stated that the proposed rule should make clear that funds paid out from the Reserve “ought not be considered taxable income as a matter of public policy.”

Response. The Department does not have the authority to determine what is considered taxable income. The Internal Revenue Code defines income and provides specific items that are excluded from income. As a general rule, unless a payment or benefit is specifically excluded, it is considered income.

9. One commenter stated that claimants may have a difficult time submitting the necessary documentation to the Department and recommended that the rule “give greater deference to delaying the adjudication of requests than the returning of them.”

Response. The Department is committed to taking reasonable measures to ensure that eligible victims receive payment from the Reserve, consistent with the statute. In that respect, the Department is committed to working with claimants to obtain missing information before returning a request to them. The rule provides that the Department will make “reasonable efforts” to request missing information from a claimant and will make “reasonable efforts” to identify a Federal criminal case in which a claimant's application might be submitted. The Department under the rule accordingly has discretion to determine, based on the claimant's circumstances, whether to delay the return of an application to allow a claimant additional time to submit documentation. If, however, after reasonable efforts, the Department is unable to obtain the necessary information or identify such a case, it cannot present the claimant's application to a court and will return the request to the claimant. The Department does not “adjudicate” the application in doing so. Neither this rule nor the Department's return of a request limits the claimant's ability to present an application to a court. Moreover, a claimant may submit a new application to the Department to correct shortcomings in an earlier application, so long as the new application contains material, additional information supporting the claimant's eligibility for defined monetary assistance.

10. One commenter recommended that the Department inform victims of their right potentially to obtain compensation from “their particular state jurisdiction.”

Response. The Department declines to amend the rule to include information about other sources of compensation because this rule focuses on defined monetary assistance. The Department already provides information about other victim compensation and assistance on its website: https://ovc.ojp.gov/help-for-victims/help-in-your-state.

11. One commenter stated that the proposed rule should require the creation of a system “to notify potential claimants” of their “potential eligibility” for payment.

Response. The Department declines to amend the rule to require creation of a notification system. The AVAA does not provide for the creation of such a system, and the Department does not possess the information necessary to set up a system of that nature. For example, the Department does not regularly track restitution payments and thus would not know whether a claimant has already received more than the amount of defined monetary assistance in restitution, which would make the claimant ineligible under the statute. Moreover, a court, not the Department, determines whether a claimant is eligible.

Pursuant to 18 U.S.C. 2259(d)(1)(B) and (C), a district court determines whether a claimant is eligible to receive defined monetary assistance, and, if it makes such a finding, orders payment of defined monetary assistance to the victim or the victim's authorized representative. The Act does not specify any application process, but it does authorize the Attorney General to administer the Reserve. Pursuant to this authorization, the Department has established the process set forth in this final rule to allow claimants to request that the Department facilitate obtainment of the requisite district court order for the victim.

This final rule is designed to assist claimants in obtaining court determinations of eligibility for payment of defined monetary assistance from the Reserve. As discussed more fully below, defined monetary assistance is distinct from court-ordered restitution.

Under the final rule, claimants may choose to request that the Department present an application to a court for the court's determination of eligibility for defined monetary assistance. The Department will review the request and may follow up as needed to seek additional information from the claimant or the claimant's authorized representative in order to resolve any gaps in the claimant's supporting information. It is the claimant's responsibility to present evidence sufficient to establish a complete request, but in no instance will the claimant be required to send—nor shall the claimant send—any images or videos of child pornography. A request is complete where it is supported by all information required by the claim form and by responses to follow-up requests for information. The Department will not present an application based on a request that is incomplete or duplicative of a request that the Department has already received. The Department will provide notice to a claimant if it decides not to present the requested application to the court.

After the Department receives a claimant's request, and the Department has exhausted reasonable efforts to obtain any needed additional information from the claimant, the Department will use reasonable efforts to identify a Federal child pornography trafficking case in which a visual depiction of the claimant was involved. The Department will consider any cases identified by the claimant as well as any in which the Department has independent information linking the claimant to a Federal child pornography trafficking case. If, based on the information in the request, the claimant might be eligible for defined monetary assistance as a result of more than one case, the Department, in its sole discretion, will decide in which case it will present the application.

It may take time for the Department to identify an appropriate case to seek the required court order or to determine which of several potential cases is the most appropriate. The Department will endeavor to obtain the order in a timely manner.

Once the Department identifies an appropriate case, the Department will present the claimant's application to the district court, which may then issue an order affirming the claimant's eligibility for payment. The mere presentment of an application to a court does not imply that the Department has taken a position on the ultimate merits of the application. The Department may or may not (as it deems appropriate) present the application with an accompanying recommendation—for example, the Department may include a recommendation that the court grant the application where the Department is persuaded that the statutory standard for payment is met. Conversely, the Department may recommend that the court deny the application if it is not persuaded that the statutory standard for payment is met. If the Department determines that it will recommend against the court ordering payment, the Department will make reasonable efforts to inform the claimant (or the claimant's authorized representative, if applicable) of such recommendation prior to any presentation of the claimant's application to the court.

In the event that the Department disagrees with the court's eligibility determination, the Department may decide to seek appellate review of a ruling by a district court regarding the claimant's eligibility for defined monetary assistance. The Department will make reasonable efforts to consult with the claimant (or the claimant's authorized representative, if applicable), on the issue of seeking appellate review.

Depending on the basis for the court's ruling, the Department may seek to present the claim underlying a denied application in another case when it would be appropriate to do so. The Department will make reasonable efforts to consult with the claimant (or the claimant's authorized representative, if applicable) about any decision to present a claim in another case.

If an application is denied by the district court, no appellate review is taken or such appellate review is unsuccessful, and the claim underlying an application is not presented in another case, the claimant will not receive defined monetary assistance on the basis of the claimant's request to the Department. If the claimant resubmits a request to the Department with material, additional supporting information, the Department may present that new application as consistent with these regulations.

Once the court issues an order of payment, the Department will pay the victim (or an authorized representative, if applicable) the defined monetary assistance from the Reserve, as specified in the order. Payment will typically be made via electronic funds transfer facilitated by the Department of the Treasury, but the Department may use other methods ( e.g., physical check) depending on the circumstances and technology or systems in place at the time of payment. Any money received may be subject to Federal, State, or local taxes.

There is no fee to submit a request to the Department when seeking defined monetary assistance from the Reserve, and a claimant (or authorized representative, if applicable) may submit a request for defined monetary assistance without being represented by an attorney. Nonetheless, a claimant (or authorized representative, if applicable) may hire an attorney for this purpose; it will be entirely the claimant's or authorized representative's decision whether to do so. Under 18 U.S.C. 2259(d)(4), if the claimant or authorized representative is represented by counsel, the attorney shall not charge, receive, or collect, and the court may not approve, any payment of fees and costs that in the aggregate exceeds 15 percent of any defined monetary assistance paid under the Act on such claim. An attorney who violates this provision is subject to fine, imprisonment of up to one year, or both.

Claimant submissions will not be made public and will be protected and used only in accordance with applicable law, including the Privacy Act of 1974, 5 U.S.C. 552a. Pursuant to 5 U.S.C. 552a, 18 U.S.C. 3509(d)(1), and 18 U.S.C. 3771(a)(8), the Department will not disclose to the public the names of the individuals who have requested defined monetary assistance from the Reserve or the names of the deceased claimants for whom defined monetary assistance is sought from the Reserve, or their personally identifiable information, except as necessary to process a request or application or obtain a court order, to bring a criminal or civil case against an individual for obtaining defined monetary assistance by fraud, or pursuant to law or court order. However, the fact that a victim has received defined monetary assistance may be introduced in a Federal criminal proceeding where the amount of the victim's losses is at issue.

In Department filings, the Department will protect the confidentiality of names and other personally identifiable information, including by submitting filings under seal, consistent with applicable law, rules, and Department policies and procedures.

The process of providing a claimant with access to information held by the Government will be subject to all applicable laws and regulations, including the Privacy Act of 1974, 5 U.S.C. 552a, and subpart B of part 16 of title 28, Code of Federal Regulations.

Victims may choose to pursue restitution; to pursue defined monetary assistance; or to pursue some combination of the two, whether in the same case or in multiple cases, as appropriate. 18 U.S.C. 2259(d)(3) provides that a victim who has previously collected restitution in an amount greater than the amount of the defined monetary assistance available under section 2259(d)(1)(D) is ineligible to seek defined monetary assistance. A victim who has collected restitution in an amount less than or equal to the amount of defined monetary assistance ( i.e., less than or equal to $35,000, adjusted for inflation as of the date of application and as described above) is eligible to seek defined monetary assistance. Although the statute does not define the term “collected,” the word “collected” ordinarily means amounts actually received, not merely amounts ordered but not yet paid. See, e.g., Collect, Oxford English Dictionary, https://www.oed.com/view/Entry/36263 (last visited July 22, 2024) (defining “collect” to mean “to receive money”). There is often a lag between order and payment. The amount collected is the aggregated payment from all defendants. Once victims have collected an amount of restitution greater than the amount of defined monetary assistance, they become ineligible to obtain defined monetary assistance. For example, a defendant may have been ordered to pay a victim $50,000 in restitution, but the victim to date might have received only $5,000. That victim would remain eligible for defined monetary assistance until the victim collects more than $35,000 (inflation-adjusted) in restitution. If a victim obtains orders for restitution, and then receives defined monetary assistance, the amount of the defined monetary assistance must be disclosed if the victim is later asked to provide information to a court concerning the amount of recovery collected pursuant to 18 U.S.C. 2259. See 18 U.S.C. 2259(b)(2)(C), (d)(2)(C). Collection of forms of monetary recovery other than restitution, such as from a civil suit, does not affect a victim's eligibility for defined monetary assistance.

Under 18 U.S.C. 2259(d)(2)(A), a victim may receive a payment of defined monetary assistance only once. Even after receiving such a payment, a victim can, under 18 U.S.C. 2259(d)(2)(B), decide to seek restitution in court pursuant to 18 U.S.C. 2259. However, 18 U.S.C. 2259(d)(2)(C) specifies that the amount a victim received in defined monetary assistance must be deducted from the total amount of losses subsequently sought in restitution. For example, if a victim obtains defined monetary assistance in the amount of $35,000, and in a later case pursues a restitution claim for $100,000, the maximum amount recoverable on the latter claim would be $65,000.

Obtaining restitution or defined monetary assistance does not bar victims from seeking a civil remedy, such as under 18 U.S.C. 2255, although either may impact the amount the victims recover in a civil suit.

Defined monetary assistance is available to any eligible “victim of . . . trafficking in child pornography.” 18 U.S.C. 2259(d)(1)(A). The Act imposes three requirements for payment of defined monetary assistance.

First, the claimant must appear in child pornography that has been trafficked. “Trafficking in child pornography” is defined in 18 U.S.C. 2259(c)(3) by reference to statutes that prohibit advertising, transporting, distributing, receiving, or possessing child pornography, or accessing child pornography with intent to view it.

Second, at least one defendant must have been convicted in Federal court of conduct (advertising, transporting, distributing, receiving, or possessing child pornography, or accessing child pornography with intent to view it) involving a visual depiction of the claimant. The Act imposes no time limits on when the conviction must have occurred. Any qualifying conviction serves as a basis for establishing a claimant's eligibility for defined monetary assistance, so long as there is sufficient evidence to obtain a court order as required under the statute.

Sometimes the evidence may suggest that the defendant possessed child pornography depicting a particular victim, but the defendant's conviction was for a different crime. This could happen if child pornography involving Victim A was found on a defendant's computer, but the defendant was actually convicted of producing child pornography of Victim B or distributing child pornography depicting Victim C. Victim A would not be entitled to defined monetary assistance based upon that case, though Victim A might be eligible in a different case.

A single conviction is sufficient to establish a claimant's eligibility. There is no need under the Act to prove that the claimant was a victim in more than one conviction for trafficking in child pornography.

Third, the claimant must appear in a visual depiction that shows “sexually explicit conduct” as defined in 18 U.S.C. 2256(2)(A) and must have been under the age of 18 at the time the visual depiction was created.

Not all images of children being traded online meet this definition of sexually explicit conduct. As one example, some individuals may appear in imagery that is illegal under State law, but that is not prohibited under Federal law. Because such images do not depict “sexually explicit conduct” as defined in section 2256, individuals appearing in such material would not be eligible for defined monetary assistance. In order to obtain defined monetary assistance, the claimant would need to establish that a defendant was convicted of a Federal offense involving the sexually explicit imagery.

A claimant need not be a United States citizen and need not reside in the United States in order to be eligible for defined monetary assistance.

Section 81.51 sets forth the statutory basis for and the purpose of the Reserve, as well as the statutory one-time payment amount.

Section 81.52 provides the definitions applicable to this subpart. If a term is not defined in section 81.52, the term has the statutory definition at 18 U.S.C. 2256, 2259, 2259A, or 2259B.

Section 81.53 provides certain requirements for eligibility for a payment from the Reserve, including burden of proof and eligibility exclusions, and specifies the effect of collecting defined monetary assistance on later requests for restitution.

Section 81.54 provides a description for how persons may submit requests to the Department for funds from the Reserve using an online portal located on the Department's website for this program. Additional information as to how to submit a request to the Department will be available on the website.

Section 81.55 explains that the claimant must follow the directions on the Department's website for this program to submit a request to the Department for monetary assistance. Failure to submit all required documentation would potentially result in delay of the adjudication or return of the request by the Department.

Section 81.56 details the procedures to determine a personal representative to request and receive funds on the claimant's behalf.

Section 81.57 provides the process by which requests submitted to the Department for defined monetary assistance and court orders requiring payment will be processed by the Department.

Section 81.58 sets forth signatures and certifications required for a request to the Department to be considered complete.

Section 81.59 provides information related to privacy and confidentiality of claimants' names and other personally identifiable information during the course of the request process.

This final rule concerns matters relating to “benefits,” 5 U.S.C. 553(a)(2), and also to “rules of . . . agency procedure,” 5 U.S.C. 553(b)(A). Therefore, it is exempt from the requirement of prior notice and comment and from a delay in its effective date.

Nevertheless, the Department believed that comments from the public would be useful in developing these regulatory changes. Consequently, on June 5, 2023, 88 FR 36516, the Department published a notice of proposed rulemaking and solicited public comments on this matter. The comments received and the Department's responses thereto are set forth in Part III above.

This final 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 final rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866. The rule is primarily procedural, dealing with the administrative process of submitting requests to the Department for defined monetary assistance. The key eligibility standards are set forth in the statute, and the Department is not by this final rule making any changes to those standards.

As set forth in the cost-benefit analysis below, this final rule will not have the economic effects described in section 3(f)(1) of Executive Order 12866.

This regulation has no cost to State, local, or Tribal governments, or to the private sector. The Child Pornography Victims Reserve is funded by assessments paid by certain Federal offenders, as well as gifts, bequests, or donations from private individuals, deposited into the Crime Victims Fund in the United States Treasury and set aside in the Reserve; those funds may not be obligated in an amount above $10 million in any given year. See 18 U.S.C. 2259B(a); 34 U.S.C. 20101(d)(6).

The cost to the Federal Government consists both of administrative expenses and amounts distributed to victims. Both types of costs depend on the number of claimants, including both prospective and retroactive claimants.

Although spending is anticipated to be higher in the initial years as a result of the number of potential retroactive claimants, the program will not spend more than the statutory maximum of $10 million each fiscal year. That is, even if claimants submit requests for defined monetary assistance that, in the aggregate, exceed $10 million in one year, the Department will spend no more than $10 million, and will pay only those claims that can be satisfied from that amount. In such a circumstance, claims will be paid based on the date on which courts ordered the payments, with the earliest-ordered payments made first. See 18 U.S.C. 2259B(b). Once the Department has paid out the allotted $10 million dollars in any given fiscal year, the requests that remain unpaid will roll over into the next fiscal year and will be processed in the original order in which they were ordered. The Department will also follow the same order-of-payment procedure in any other situation in which the Reserve has insufficient funds to make all of the payments ordered under section 2259(d).

The Department has assessed the benefits and costs anticipated from this rulemaking and has considered whether there are reasonably feasible alternatives to this rulemaking, including whether there are reasonably viable non-regulatory actions that could be taken in lieu of this rulemaking. The purpose of this rulemaking is to provide the legal and administrative framework for defined monetary assistance to be given to any individual (or an authorized representative of such individual) who is determined by a Federal court to be a victim of trafficking in child pornography as defined by 18 U.S.C. 2259(c) and (d). The Department concludes that there are no viable non-regulatory actions that it could take to implement the AVAA in a fair and efficient manner.

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

The Department certifies that this rule will not have a significant economic impact upon a substantial number of small entities. This regulation pertains to defined monetary assistance for eligible individuals who are depicted in child pornography that is the basis for certain convictions under 18 U.S.C. chapter 110. The Reserve will provide payment to such child pornography victims based on orders obtained in U.S. district courts.

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 (adjusted annually for inflation), 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 final rule implements 18 U.S.C. 2259, 2259A, 2259B, and 34 U.S.C. 20101(d), which establish the Reserve and define eligibility for payments from the Reserve. In order to evaluate requests and provide defined monetary assistance, the Department must collect certain information from individuals who are depicted in child pornography that is the basis for certain convictions under 18 U.S.C. chapter 110, or from their authorized representatives. Accordingly, the Department's Executive Office for United States Attorneys will submit an information collection request for review and clearance in accordance with the procedures of the Paperwork Reduction Act of 1995.

The Department will publish a notice of a new Privacy Act system of records upon publication of the final rule, which will become effective upon publication, subject to a 30-day comment period for the routine uses claimed in the notice. In the interim, disclosures necessary to process requests will be made only with the prior written consent of claimants or as otherwise authorized under 5 U.S.C. 552a(b).

It is the Department's intent that if any provision of this rule is held to be invalid or unenforceable by its terms, or as applied to any person or circumstance, the remainder of the provision or rule shall be workable and construed so as to give it the maximum effect permitted by law, unless such holding shall be one of utter invalidity or unenforceability, in which event such provision shall be deemed severable from this part and shall not affect the remainder thereof or the application of such provision to other persons not similarly situated or to other, dissimilar circumstances.

By the authority vested in the Attorney General under 5 U.S.C. 301 and 28 U.S.C. 509, 510, and for the reasons stated in the preamble, 28 CFR part 81 is amended as follows:

On December 17, 2023, Goettle Construction company notified the Coast Guard that they will be conducting waterside construction associated with a bank stabilization project on the Cuyahoga River in Cleveland, Ohio from August 15, 2024, through November 30, 2025. Construction is intended to shore-up and replace approximately 2,400 linear feet of corrugated steel bulkhead located on the western (left descending) bank of the Cuyahoga River between the Detroit-Superior Bridge and the Columbus Road Bridge. The Captain of the Port Sector Eastern Great Lakes (COTP) has determined that potential hazards associated with the equipment used to complete this project would be a safety concern for any craft intending to navigate near the project area during construction hours. Furthermore, additional safety measures are necessary to keep workers on the construction barges safe while completing the construction project.

There will be impacts to the Cuyahoga River in Cleveland during this stabilization project. However, this work is necessary because if the bank of the river is allowed to slide into the river, then it could potentially close the river for an estimated 12-18 months for all vessel traffic.

The Coast Guard published a notice of proposed rulemaking on May 21, 2024, with a 30-day comment period, 89 FR 44622. During this period, 10 comments were received. After a review of all comments, several meetings were held with project stakeholders to discuss concerns over impacts to commercial vessel traffic in the affected area of the navigable waterway. The result of the analysis of the comments and collaboration with stakeholders was to maintain the original engineering scope of the project, however, with modified project dates and timing to accommodate stakeholder concerns related to vessel and facility scheduling. The Coast Guard is satisfied with these modifications to the project schedule.

Due to the significant nature of this project, and in the interest of continued collaboration with stakeholders, this rulemaking provides for an additional 30-day comment period. Also, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be impracticable because of the need to protect the public from hazards associated with the project.

The Coast Guard is proposing this rulemaking under authority in 46 U.S.C. 70011 and 70034. The authority to promulgate regulations under this section is delegated to the Commandant of the Coast Guard under Department of Homeland Security (DHS) Delegation No. 00170.1(II)(70), Revision No. 01.4.

During the NPRM comment period, 10 comments were received from industry representatives potentially affected by the construction plan. Their shared, consistent concern was the restriction of commercial vessel traffic during the daily construction periods resulting in impacts to the transportation of various commodities to and from waterfront processing facilities. These comments have been addressed directly with the stakeholders during several in-person meetings. As a result of these comments and meetings, we adjusted the dates and times for the RNA in this document.

This rule establishes a RNA starting on December 2, 2024, with an anticipated completion date of July 11, 2025. The RNA would cover all navigable waters within 10 feet of construction barges in the Cuyahoga River located on the western bank (left descending bank) of the Cuyahoga River between the Detroit-Superior Bridge and the Columbus Road Bridge in Cleveland, Ohio. The duration of the Regulated Navigation Area is intended to ensure the safety of vessels and these navigable waters during the following scheduled hours of the construction project:

No vessel or craft would be permitted to be operated within 10 feet of the construction barges without obtaining permission from the COTP or a designated representative. The regulatory text we are proposing appears at the end of this document.

The economic impact of this rule is reduced to reasonable minimums as a result of consideration of comments and collaboration with affected stakeholders.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on these statutes or Executive orders.

Executive Orders 12866 (Regulatory Planning and Review) and 13563 (Improving Regulation and Regulatory Review) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.

Two additional Executive orders were recently published to promote the goals of Executive Order 13563: Executive Order 13609 (Promoting International Regulatory Cooperation) and Executive Order 13610 (Identifying and Reducing Regulatory Burdens). Executive Order 13609 targets international regulatory cooperation to reduce, eliminate, or prevent unnecessary differences in regulatory requirements. Executive Order 13610 aims to modernize the regulatory systems and to reduce unjustified regulatory burdens and costs on the public.

The Office of Management and Budget (OMB) has not designated this rule a significant regulatory action under section 3(f) of Executive Order 12866, as amended by Executive Order 14094 (Modernizing Regulatory Review). A regulatory analysis (RA) follows.

Under the Regulatory Flexibility Act, 5 U.S.C. 601-612, we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

While some owners or operators of vessels intending to transit the regulated area may be small entities, for the reasons stated in section V above, this interim rule would not have a significant economic impact on any vessel owner or operator. The Coast Guard certifies under 5 U.S.C. 605(b) that this interim rule would not have a significant economic impact on a substantial number of small entities.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this interim rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121, we offer to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3520.

A rule has implications for federalism under Executive Order 13132 (Federalism) if it has a substantial direct effect on States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under Executive Order 13132 and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132. Our analysis follows.

It is well settled that States may not regulate in categories reserved for regulation by the Coast Guard. It is also well settled that all of the categories covered in 46 U.S.C. chapter 700 (Ports and Waterways Safety), as well as the reporting of casualties and any other category in which Congress intended the Coast Guard to be the primary source of a vessel's or facilitiy's obligations, are within the fields generally foreclosed from regulation by the States. See, e.g., United States v. Locke, 529 U.S. 89 (2000) (finding that the States are foreclosed from regulating tanker vessels), see also Ray v. Atlantic Richfield Co., 435 U.S. 151, 157 (1978) (State regulation is preempted where “the scheme of Federal regulation may be so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it [or where] the Act of Congress may touch a field in which the Federal interest is so dominant that the Federal system will be assumed to preclude enforcement of State laws on the same subject.” (citations omitted)).

This Interim Final Rule will establish a Regulated Navigation Area (RNA) for certain waters of the Cuyahoga River in Cleveland, Ohio. In enacting 46 U.S.C. 70011 (Waterfront safety) Congress articulated a need for the Coast Guard to protect the navigable waters of the United States. We have analyzed this interim rule for an RNA under Executive Order 13132 and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132. The Coast Guard recognizes that the States may prescribe higher safety standards pursuant to 46 U.S.C. 70011(c), but such standards may not, conflict with Federal statutes and regulations. Ray v. Atlantic Richfield Co., at 158. Therefore this rule is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

While it is well settled that States may not regulate in categories in which Congress intended the Coast Guard to be the sole source of a vessel's obligations, the Coast Guard recognizes the key role that State and local governments may have in making regulatory determinations. Additionally, for rules with federalism implications and preemptive effect, Executive Order 13132 specifically directs agencies to consult with State and local governments during the rulemaking process. If you believe this rule has implications for federalism under Executive Order 13132, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section of this preamble.

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

This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630 (Governmental Actions and Interference with Constitutionally Protected Property Rights).

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988 (Civil Justice Reform) to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045 (Protection of Children from Environmental Health Risks and Safety Risks). This rule is not an economically significant rule and will not create an environmental risk to health or risk to safety that might disproportionately affect children.

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

We have analyzed this rule under Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use). We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

The National Technology Transfer and Advancement Act, codified as a note to 15 U.S.C. 272, directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through OMB, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a Regulated Navigation Area during specific periods each day from December 2, 2024, through July 11, 2025, that would prohibit vessels from operating within 10 feet of the construction barges. Normally such actions are categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. Paragraph L60a pertains to Regulated Navigation Areas. This rule involves Regulations establishing, disestablishing, or changing Regulated Navigation Areas.

The Coast Guard views public participation as essential to effective rulemaking and will consider all comments and material received on this interim rule during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this interim rule, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

Submitting comments. We encourage you to submit comments through the Federal Decision Making Portal at https://www.regulations.gov. To do so, go to https://www.regulations.gov, type USCG-2024-0393 in the search box and click “Search.” Next, look for this document in the Search Results column, and click on it. Then click on the Comment option. If you cannot submit your material by using https://www.regulations.gov, call or email the person in the FOR FURTHER INFORMATION CONTACT section of this interim rule for alternate instructions.

Viewing material in docket. To view documents mentioned in this interim rule as being available in the docket, find the docket as described in the previous paragraph, and then select “Supporting & Related Material” in the Document Type column. Public comments will also be placed in our online docket and can be viewed by following instructions on the https://www.regulations.gov Frequently Asked Questions web page. We review all comments received, but we will only post comments that address the topic of the interim rule. We may choose not to post off-topic, inappropriate, or duplicate comments that we receive.

Personal information. We accept anonymous comments. Comments we post to https://www.regulations.gov will include any personal information you have provided. For more about privacy and submissions to the docket in response to this document, see DHS's eRulemaking System of Records notice (85 FR 14226, March 11, 2020).

Public meeting. We are not planning to hold a public meeting but will consider doing so if we determine from public comments that a meeting would be helpful. We would issue a separate Federal Register notice to announce the date, time, and location of such a meeting.

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

This final rule revises certain criminal prohibitions in 36 CFR part 261, subpart A, to enhance consistency of the Forest Service's law enforcement practices with those of State and other Federal land management agencies. In addition, this final rule streamlines enforcement of some of the criminal prohibitions found in 36 CFR part 261, subpart B, which are enforceable only through issuance of an order, by moving them to 36 CFR part 261, subpart A, which contains criminal prohibitions that are enforceable without issuance of an order.

Forest Service law enforcement personnel continue to encounter a significant volume of violations for simple possession of controlled substances and drug paraphernalia. Agency law enforcement personnel routinely deal with under-age alcohol possession on National Forest System (NFS) lands. These violations pose a threat to the safety of visitors to NFS lands as well as to Forest Service personnel. This final rule enhances the Forest Service's authority to address public safety issues by adding prohibitions relating to controlled substances, drug paraphernalia, and alcoholic beverages. These new prohibitions enable the Forest Service to enforce more effectively violations on NFS lands for simple possession of controlled substances, possession of alcoholic beverages in violation of State law (for open containers or under-age drinking) and furnishing alcoholic beverages to minors. The final rule also authorizes the Forest Service to enforce violations for the possession of drug paraphernalia if prohibited by State law. These changes are intended to align the Forest Service's law enforcement practices more closely with those of State and local law enforcement agencies.

Additionally, the final rule updates the prohibitions to enhance protection of persons visiting and working on NFS lands from theft of personal property and from disorderly conduct by other visitors. The final rule enhances enforcement of wildfire prevention prohibitions by moving them from 36 CFR part 261, subpart B, which requires issuance of an order, to 36 CFR part 261, subpart A, which does not, and by adding a prohibition banning exploding targets year-round. The final rule also makes other revisions such as updating the prohibitions relating to off-road vehicles and updating the penalty for violating the criminal prohibitions in 36 CFR part 261 consistent with current statutory law.

On October 3, 2023, the Forest Service published a proposed rule in the Federal Register (88 FR 68035) proposing to revise the Forest Service's criminal prohibitions to enhance consistency of the Agency's law enforcement practices with those of State and other Federal land management agencies and to streamline enforcement of the Agency's criminal prohibitions related to fire and use of vehicles on NFS roads and NFS trails by eliminating the requirement to issue an order for enforcement.

The Forest Service received 41 comments during the public comment period. Eight were from professional and interest groups, 19 were from individuals, 9 were from State or local governmental entities, and 5 were submitted anonymously. Four commenters supported the proposed rule, 11 conditionally supported the proposed rule, and 26 opposed the proposed rule. One of the commenters requested a 90-day extension of the comment period. Based on the detail in the comments submitted, the Forest Service determined that it was not necessary or appropriate to extend the comment period for the proposed rule.

The comments on the proposed rule and the Department's responses follow.

Comment: One commenter was concerned about the Forest Service's response to requests for law enforcement assistance. One commenter believed that a lack of law enforcement on NFS lands is a concern given the increase in crime, wondered why Forest Service law enforcement officers were not given the tools to handle violations of existing regulations, and expressed concern about the number of dog leash regulations. Another commenter recommended removing any penalties for those who protest commercial activities on NFS lands. Some commenters were concerned that the Federal courts do not have a juvenile justice system. Multiple commenters requested that the Forest Service increase funding for cooperative law enforcement agreements with State and local law enforcement agencies. Some commenters wanted a prohibition providing for protection for nude recreation. One commenter was concerned about recreation fees being charged under the Federal Lands Recreation Enhancement Act for areas on NFS lands with a development scale of zero. Another commenter was concerned about not using State courts for prosecution of prohibitions under the proposed rule.

Response: These comments are outside the scope of the proposed rule, which does not address the Forest Service's response to requests for law enforcement assistance, enforcement of existing regulations, prohibitions on unleashed dogs, enforcement involving protests, the juvenile justice system, the staffing levels of State and local law enforcement agencies, funding for cooperative law enforcement agreements with State and local law enforcement agencies, prohibitions providing for protection for nude recreation, recreation fees charged under the Federal Lands Recreation Enhancement Act, or the venue for prosecuting violations of prohibitions under the proposed rule.

Comment: One commenter believed that the proposed rule could be beneficial to the safety of visitors to NFS lands if Forest Service law enforcement officers were provided sufficient training.

Response: The Department agrees that training for Forest Service law enforcement officers is critical, and training will be provided on the final rule. In addition, Forest Service law enforcement officers are already familiar with the prohibitions in the final rule and have been enforcing several of the prohibitions included in subpart A of the proposed rule through orders issued under subpart B of the existing rule. The proposed and final rules streamline work and eliminate the task of issuing orders for these prohibitions for each Agency administrative unit and promote consistent enforcement of these prohibitions nationwide.

Comment: One commenter asserted that the proposed rule would ensure uniformity of enforcement.

Response: The Department agrees that the proposed and final rules promote consistency in law enforcement on NFS lands.

Comment: One commenter expressed concern that the proposed rule would lead to over-policing, would have a disparate impact on people of color, and would lead to pretextual encounters that violate the privacy of NFS visitors.

Response: The final rule is not expected to result in disproportionately high and adverse impacts on minority or low-income populations. Forest Service law enforcement officers are not exempt from Federal civil rights and privacy laws and Executive orders, including Executive Order 14074, Advancing Effective, Accountable Policing and Criminal Justice Practices To Enhance Public Trust and Public Safety, and must comply with requirements in the United States Constitution regarding search and seizure. In addition, the final rule will allow Forest Service law enforcement officers to enforce possession of controlled substances on NFS lands under the Forest Service's regulations as a Class B misdemeanor, as appropriate, rather than under 21 U.S.C. 844(a) as a Class A misdemeanor or felony, which carry harsher penalties.

Comment: One commenter asserted that the proposed rule bypassed Congressional review and approval.

Response: The Forest Service submits all final rules, including this final rule, to Congress in accordance with the Congressional Review Act, 5 U.S.C. 801 et seq.

Comment: Some commenters expressed concern that the proposed rule would adversely affect public safety. For example, one commenter believed that assault under State law could be charged as disorderly conduct under the proposed rule.

Response: In the limited circumstances when Forest Service law enforcement officers qualify as peace officers under State law, they are acting under State law. The proposed and final rules provide for Forest Service enforcement of prohibitions, including the prohibition on disorderly conduct, as enumerated in those rules, in accordance with the Forest Service's statutory authority. The proposed and final rules enhance consistency in law enforcement on NFS lands by providing for enforcement of certain prohibitions without issuance of an order and enhance consistency of the Forest Service's law enforcement practices with those of State law enforcement agencies. The proposed and final rules promote visitor and employee safety on NFS lands by adding prohibitions relating to controlled substances, drug paraphernalia, and alcoholic beverages; enhancing protection of persons visiting and working on NFS lands from theft of personal property and from disorderly conduct by other visitors; and enhancing fire prevention on NFS lands.

Comment: Some commenters were concerned the proposed rule would require citizens accused of even a minor offense to go through the Central Violations Bureau (CVB) instead of being prosecuted in a United States District Court. They believed that the CVB is not the appropriate venue for processing minor offenses because it fails to require behavioral programming to reduce the offenders' future threat to the public, and that the proposed rule would preclude Forest Service law enforcement officers from filing citations directly through the State court system, which is designed to handle citations for minor offenses. Another commenter expressed concern about reduced prosecution of violations involving small amounts of a controlled substance.

Response: The proposed rule does not address use of the CVB, which is a national center that provides for electronic payment of United States District Court violation notices issued for offenses committed on Federal property, including NFS lands. The proposed and final rules provide for small amounts of a controlled substance to be handled through issuance of a violation notice and prosecution before a United States magistrate judge as a Class B misdemeanor. Under the Agency's current regulations, violations for simple possession of a controlled substance on NFS lands are often not prosecuted because they involve small amounts that are insufficient to meet guidelines for prosecution under 21 U.S.C. 844(a) before a United States District Court judge as a Class A misdemeanor or felony.

Comment: A commenter believed the best way to ensure law and order on Federal land was to work with State and local law enforcement. Other commenters asserted that the purposes of the proposed rule could be accomplished by contracting with local law enforcement agencies.

Response: The Forest Service agrees that cooperation with State and local law enforcement agencies in the execution of their responsibilities related to NFS lands enhances protection of persons and property on NFS lands. Under the Cooperative Law Enforcement Act (16 U.S.C. 551a), the Forest Service enters into cooperative law enforcement agreements with State and local law enforcement agencies, typically a county sheriff's office, that fund State and local law enforcement where NFS lands and facilities account for increased visitor use in their State. The Forest Service continues to seek opportunities to expand these efforts.

Comment: Some commenters expressed concern regarding assimilation of State law into the Forest Service's regulations.

Response: The proposed and final rules are not assimilating State law under the Assimilative Crimes Act. The Assimilative Crimes Act (18 U.S.C. 13) authorizes Federal enforcement of State criminal laws on Federal lands where the Federal Government has exclusive or concurrent legislative jurisdiction. The United States has exclusive legislative jurisdiction when it possesses all the authority of the State and the State has not reserved to itself the right to exercise any of the authority concurrently with the United States, with limited exceptions. The United States has concurrent legislative jurisdiction when the State has reserved to itself the right to exercise all the same authority concurrently with the United States.

The United States does not have exclusive legislative jurisdiction over any NFS lands. The United States generally has proprietary jurisdiction, rather than concurrent legislative jurisdiction, over NFS lands in the western States, which were reserved from the public domain without conferring any measure of the States' authority over those areas. For NFS lands in the eastern States that were acquired under the Weeks Act (16 U.S.C. 515), the United States has concurrent legislative jurisdiction only for those NFS lands acquired before February 1, 1940 ( United States v. Raffield, 82 F.3d 611 (4th Cir.), cert. denied, 519 U.S. 933 (1996)). For NFS lands that were acquired under the Weeks Act after February 1, 1940, the United States does not have concurrent legislative jurisdiction until it formally accepts it (40 U.S.C. 255).

However, concurrent legislative jurisdiction, or the lack of it, does not affect the Federal Government's broad authority when it has proprietary jurisdiction to regulate Federal lands under the Property Clause of the United States Constitution (art. IV, sec. 3, cl. 2) and applicable Federal statutes and regulations. In incorporating State law into its law enforcement regulations in 36 CFR part 261, the Forest Service is exercising its authority under the Property Clause and the Organic Administration Act of 1897 (16 U.S.C. 551), which authorize the Agency to promulgate regulations protecting NFS lands and to enforce Federal law on NFS lands.

Consistent with this authority, the Forest Service's existing travel management and law enforcement regulations already incorporate State law. For example, the Forest Service's travel management regulations at 36 CFR 212.5(a)(1) incorporate and apply State traffic law to NFS roads, unless State traffic law conflicts with motor vehicle use designations established under 36 CFR part 212, subpart B, or Forest Service regulations at 36 CFR part 261. The Forest Service's law enforcement regulations at 36 CFR 261.8 prohibit certain conduct affecting fish and wildlife, such as hunting and fishing, to the extent State law is violated, and the Forest Service's law enforcement regulations at 36 CFR 261.15 prohibit operating any vehicle off NFS, State, or county roads without a valid license as required by State law. Forest Service regulations are Federal law. When the Forest Service enforces prohibitions in its regulations that incorporate State law, the Forest Service is enforcing Federal law, not State law.

Comment: One commenter asserted that States would have to consent to the Forest Service's exercise of jurisdiction, or would have to cede jurisdiction, over the NFS lands in their States for the proposed rule to be legally promulgated. Some commenters were concerned the proposed rule would violate the United States Constitution and opposed the proposed rule based on the Forest Service's lack of jurisdiction to promulgate it.

Response: The Forest Service has jurisdiction over NFS lands and does not have to obtain consent from States to exercise that jurisdiction or have States cede jurisdiction to the Forest Service for the proposed rule to be legally promulgated. The Forest Service has broad authority to regulate NFS lands under the Property Clause of the United States Constitution and the Organic Administration Act of 1897, which authorizes the Agency to promulgate regulations protecting NFS lands and to enforce Federal law on NFS lands. (U.S. Constitution., Art. IV, Sec. 3, cl. 2.)

The delegation of this Congressional authority to the Secretary of Agriculture to regulate use and occupancy of NFS lands has been recognized for over one hundred years. See Light v. United States, 220 U.S. 523 (1911); United States v. Grimaud, 220 U.S. 506 (1911). The authority of the Secretary of Agriculture to promulgate regulations protecting NFS lands is set forth in the Organic Administration Act of 1897 (16 U.S.C. 551), which authorizes regulations that regulate the occupancy and use of the national forests and preserve them from destruction; states that violation of those regulations shall be punished by a fine or imprisonment or both; and provides that any person charged with a violation of those regulations may be tried and sentenced by any United States magistrate judge specially designated for that purpose by the court appointing that United States magistrate judge, in the same manner and subject to the same conditions as provided for in 18 U.S.C. 3401(b)-(e). The Forest Service's law enforcement regulations implementing this authority are codified at 36 CFR part 261.

Comment: One commenter believed the proposed rule was a direct attempt to bypass State law enforcement. Some commenters were concerned the proposed rule would usurp State statutory authority.

Response: The proposed and final rules complement or reinforce, rather than bypass or usurp, State law enforcement authority. The Organic Administration Act of 1897 (16 U.S.C. 480) provides that the States do not lose civil or criminal jurisdiction over their citizens on NFS lands and may enforce State civil and criminal law on NFS lands within the boundaries of their States. Consistent with that principle, the Forest Service commonly enters into cooperative law enforcement agreements with State and local law enforcement agencies that fund State and local law enforcement where NFS lands and facilities account for increased visitor use in their State. Further, the proposed and final rules reinforce State law to the extent they incorporate it, as with the new prohibitions that prohibit knowingly or intentionally possessing drug paraphernalia in violation of State law, possessing an alcoholic beverage in violation of State law, and providing an alcoholic beverage to a minor in violation of State law.

Comment: One commenter believed the proposed rule would establish a Federal enclave on all NFS lands in violation of the United States Constitution (art. 1, sec. 8, cl. 17); 40 U.S.C. 255 and 3112; 50 U.S.C. 175; and the Assimilative Crimes Act (18 U.S.C. 13).

Response: The Assimilative Crimes Act (18 U.S.C. 13) authorizes Federal enforcement of State criminal laws on Federal lands where the Federal Government has exclusive or concurrent legislative jurisdiction. In promulgating the final rule, the Forest Service is not establishing a Federal enclave subject to exclusive legislative jurisdiction under the Enclave Clause of the United States Constitution or accepting concurrent legislative jurisdiction under 40 U.S.C. 255 and 3112 for purposes of enforcement of State criminal laws on NFS lands under the Assimilative Crimes Act. Rather, in promulgating the final rule, the Forest Service is exercising its proprietary jurisdiction under the Property Clause of the United States Constitution and the Organic Administration Act of 1897.

The Enclave Clause of the United States Constitution provides that Congress has exclusive legislation over the District of Columbia and over all parcels of land purchased by the Federal Government with the consent of a State's legislature for the construction of forts, magazines, arsenals, dockyards, and other needed buildings (U.S. Constitution. Art. 1, Sec. 8, cl. 17).

A Federal enclave is a parcel of land over which the United States has exclusive legislative jurisdiction. The United States has exclusive legislative jurisdiction when it possesses all the authority of the State, and the State has not reserved to itself the right to exercise any of the authority concurrently with the United States, with limited exceptions. The United States has concurrent legislative jurisdiction when the State has reserved to itself the right to exercise all the same authority concurrently with the United States. Title 40 of the United States Code, sections 255 and 3112, provide that the United States does not have to, but may, accept exclusive or concurrent legislative jurisdiction of the land it acquires from the State where the land is located (40 U.S.C. 255 and 3112).

The United States does not have exclusive legislative jurisdiction, and generally does not have concurrent legislative jurisdiction, over NFS lands. The United States generally has proprietary jurisdiction over NFS lands in the western States, which were reserved from the public domain without conferring any measure of the States' authority over those areas. For NFS lands in the eastern States that were acquired under the Weeks Act (16 U.S.C. 515), the United States has concurrent legislative jurisdiction only for those NFS lands acquired before February 1, 1940 ( United States v. Raffield, 82 F.3d 611 (4th Cir.), cert. denied, 519 U.S. 933 (1996)). For NFS lands that were acquired under the Weeks Act after February 1, 1940, the United States does not have concurrent legislative jurisdiction until it formally accepts it (40 U.S.C. 255 and 3112).

However, concurrent legislative jurisdiction, or the lack of it, does not affect the Forest Service's broad authority under its proprietary jurisdiction to regulate NFS lands under the Property Clause of the United States Constitution (art. IV, sec. 3, cl. 2) and applicable Federal statutes and regulations. As stated in Kleppe v. New Mexico, 426 U.S. 529, 543 (1976) (citations omitted):

The Property Clause gives Congress the power to promulgate all needed regulations regarding Federal property. Congress has delegated this authority to the Secretary of Agriculture in the Organic Administration Act of 1897 (16 U.S.C. 551). The Forest Service's law enforcement regulations implementing this authority in the Property Clause and the Organic Administration Act of 1897 are codified at 36 CFR part 261.

Comment: Some commenters were concerned that public nudity would become illegal in most locations on NFS lands (1) as a result of the prohibition in the proposed rule on performing an act that is obscene or threatening when committed intentionally to cause, or recklessly to create a substantial risk of causing, public alarm, nuisance, jeopardy, or violence; and (2) as a result of the reference in the preamble to the proposed rule to “indecent exposure” as an example of such an act. These commenters stated that the proposed rule should explicitly define “act that is obscene” and “indecent exposure” and were concerned that those terms could be interpreted to apply to social and recreational nude activities.

Response: The proposed and final rules do not revise the existing definition for “publicly nude” and the existing regulatory prohibition on being publicly nude on NFS lands in the Forest Service's law enforcement regulations. The Agency's existing law enforcement regulations (36 CFR 261.2) define “publicly nude” as being in any place where a person may be observed by another person and failing to cover with a fully opaque garment the rectal area, pubic area, or genitals and, in the case of a female person, failing to cover with a fully opaque garment both breasts below a point immediately above the top of the areola. The definition excludes persons under the age of 10 years. The Forest Service's existing law enforcement regulations authorize the Agency to issue an order under 36 CFR 251.58(j) that prohibits being publicly nude in specified areas on NFS lands.

The Department does not believe it is necessary or appropriate to define the phrase, “act that is obscene,” in the final rule. To be covered by the prohibition on disorderly conduct in § 261.4(b), an act that is obscene must be committed intentionally to cause, or recklessly to create a substantial risk of causing, public alarm, nuisance, jeopardy, or violence. This context clarifies the meaning of the phrase, “act that is obscene,” and distinguishes it from social and recreational nude activities to the extent they are not covered by an order prohibiting being publicly nude. The Department also does not believe it is necessary or appropriate to define the term, “indecent exposure,” which is not used in the proposed and final rules and merely appears in the preamble to the proposed rule as an example, rather than as an element, of an act that is obscene or threatening when committed intentionally to cause, or recklessly to create a substantial risk of causing, public alarm, nuisance, jeopardy, or violence.

Comment: One commenter was concerned about orders not completing a formal process. Another commenter was concerned about the Forest Service's compliance with issuing orders in accordance with the John D. Dingell, Jr. Conservation, Management, and Recreation Act (Pub. L. 116-9, Title IV (Sportsmen's Access and Related Matters)) (Dingell Act).

Response: The Forest Service's existing law enforcement regulations at 36 CFR part 261, subpart B, were published for public notice and comment in the Federal Register . These regulations authorize the Agency to issue orders that impose temporary closures or restrictions only as enumerated in 36 CFR part 261, subpart B, and only in specific locations, based on site-specific conditions. Consistent with these regulations, each order issued by the Forest Service describes the specific area, road, or trail to which it applies; specifies the times it applies; and states each prohibition it applies from those enumerated in 36 CFR part 261, subpart B, and is displayed in such locations and in such a manner as to reasonably bring the prohibition in the order to the attention of the public.

As required by the Dingell Act and the Forest Service's implementing directive in Forest Service Handbook 5309.11, chapter 30, section 34, for temporary or permanent hunting, fishing, or recreational shooting orders issued under 36 CFR part 261, subpart B, the Forest Service provides advance notice to the public of the intent to issue the proposed order for public comment, and provides public notice and opportunity to comment on the proposed order, by completing the following steps: (1) coordination with the appropriate State Fish and Wildlife agency; (2) coordination with affected Indian Tribes, as appropriate; (3) publication and other dissemination of an advance notice of intent before publication of a notice of opportunity for public comment; (4) publication of a notice of opportunity for public comment; (5) publication of a response to comments received during the comment period; and (6) issuance of the final temporary or permanent hunting, fishing, or recreational shooting order.

Comment: Some commenters opposed the proposed revision to 36 CFR 261.53 that would allow for issuance of an order restricting use of an area, as well as closure of an area in its entirety to all uses, without local coordination and opposed the delegation of authority for this purpose.

Response: The proposed and final rules do not change the delegation of the Forest Service's authority to issue orders under 36 CFR part 261, subpart B. The Forest Service's regulations at 36 CFR 261.53 authorize the Agency to issue orders to protect species, archaeological resources, scientific experiments or investigations, public health or safety, property, and the privacy of Tribal activities for traditional and cultural purposes. The Department believes having the flexibility to restrict use of an area, as well as close it entirely, for these purposes will allow the Forest Service to address these concerns in a more targeted manner. For maximum effectiveness and awareness, the Forest Service works closely with local authorities in issuing these types of orders.

Comment: Some commenters opposed traffic enforcement by the Forest Service on State and county roads and were concerned the proposed rule would broaden traffic enforcement.

Response: The proposed and final rules do not address traffic enforcement on State and county roads. Rather, the proposed and final rules address traffic enforcement on NFS roads. An NFS road is defined in the Forest Service's regulations to exclude a State or county road. An NFS road is defined as a road (1) that is wholly or partly within or adjacent to and serving the NFS that the Forest Service determines is necessary for the protection, administration, and utilization of the NFS and the use and development of its resources; and (2) that is not authorized by a legally documented right-of-way held by a State, county, or other local public road authority (36 CFR 212.1). The proposed and final rules incorporate State traffic law in 36 CFR 261.12, which applies to NFS roads, so that State traffic law is enforceable as Federal traffic law on NFS roads. Specifically, the proposed and final rules incorporate two commonly cited violations of State traffic law: operating a motor vehicle without a valid license and operating a motor vehicle while under the influence of an alcoholic beverage or a controlled substance. The proposed and final rules also incorporate a catch-all prohibition that incorporates any other State traffic laws so that they are enforceable as Federal traffic law. These revisions simplify enforcement of State traffic law on NFS roads and enhance consistency in enforcement of State traffic law.

Comment: Some commenters were concerned that under the proposed rule fighting or assault would be charged as the lesser offense of disorderly conduct.

Response: Disorderly conduct is a category of offense, not the offense itself, for prohibitions enumerated in 36 CFR 261.4. Since June 1981, “engaging in fighting” has been prohibited as disorderly conduct under 36 CFR 261.4(a). The disorderly conduct prohibitions in the proposed and final rules add threatening or other violent behavior; clarify the content by prohibiting making an utterance or performing an act that is made or performed in a manner likely to inflict injury or to incite an immediate breach of peace or that is obscene or threatening. The proposed and final rules also add a criminal intent element that the violator acted with the intent to cause, or recklessly to create a substantial risk of causing, public alarm, nuisance, jeopardy, or violence. Any violations of prohibitions in 36 CFR part 261, subpart A, or in an order issued under 36 CFR part 261, subpart B, can be written as a mandatory appearance that requires the defendant to appear in Federal court, rather than simply paying a collateral fine through the CVB. States may also have the authority to enforce these types of offenses under applicable State law.

Comment: Some commenters objected to including personal property crimes in the proposed rule. Several commenters did not believe that State and local law enforcement agencies were understaffed and consequently constrained in their ability to respond promptly to personal property crimes.

Response: Personal property crimes such as theft have become an increasing problem on NFS lands. To effectively deal with this criminal activity, Forest Service law enforcement officers need appropriate tools to enforce Federal law effectively and professionally. This type of criminal activity may take place in remote locations in the NFS that are difficult to access and may not be routinely patrolled by State and local law enforcement agencies due to staffing constraints. By adding a prohibition against theft, the proposed and final rules allow Forest Service law enforcement officers to assist victims of these type of crimes and disrupt this type of criminal activity on NFS lands.

Comment: Some commenters recommended removing the proposed prohibition on leaving personal property unattended for longer than 24 hours, except in locations where longer periods have been designated, on the grounds that the proposed prohibition was unclear. Some commenters were concerned about the proposed prohibition because they believed that the determination of what constitutes “abandoned property” was subjective. Some commenters suggested a longer timeframe for leaving personal property unattended to accommodate certain types of recreational activities.

Response: Forest Service law enforcement personnel have encountered a noticeable increase in personal property, such as camping and other recreational equipment, being stored on NFS lands. Because the term “abandon” connotes relinquishing property without an intent to reclaim possession, the Forest Service needs a better tool to manage illegally stored personal property on NFS lands. The proposed rule would prohibit leaving personal property unattended for longer than 24 hours, except in locations where longer periods have been designated. Including a specified timeframe for leaving personal property unattended is an objective way to establish relinquishment of the property without an intent to reclaim it. In the final rule, the Department is extending the timeframe for leaving personal property unattended from 24 hours to 72 hours to accommodate certain types of recreational activities such as hunting, backpacking, and fishing trips and to be consistent with the Forest Service's regulations at 36 CFR 262.12, which establish a 72-hour timeframe for impoundment of property.

Comment: Commenters expressed concern that the proposed revisions to 36 CFR 261.10 governing occupancy and use would inappropriately expand the Forest Service's law enforcement mission with respect to driving under the influence and crimes affecting persons and property.

Response: The Organic Administration Act of 1897 gives the Forest Service broad authority to promulgate regulations governing occupancy and use of NFS lands and to criminally enforce violations of those regulations (16 U.S.C. 551). The proposed and final rules prohibit constructing, placing, or maintaining a sign on NFS lands or facilities without an authorization; abandoning personal property on NFS lands; possession of alcohol by a minor or possession of an open container in a vehicle, where prohibited by State law; and providing an alcoholic beverage to a minor in violation of State law. These revisions in the proposed and final rules promote the Agency's mission to provide for resource protection and address public health and safety on NFS lands and complement enforcement of State law by State and local law enforcement agencies on NFS lands.

Comment: Some commenters requested clarification concerning the proposed revision prohibiting the construction, placement, or maintenance of unauthorized signs on NFS lands or facilities.

Response: Unauthorized signs inhibit the public from fully utilizing NFS lands and can create nuisances and hazards which can inhibit appropriate use of NFS resources. Existing Forest Service regulations at 36 CFR 261.10(a) prohibit constructing, placing, or maintaining certain improvements on NFS lands or facilities without a special use authorization, contract, approved plan of operations, or other written authorization when such authorization is required. Signs are not listed as a type of improvement that is prohibited without a written authorization. Accordingly, the proposed and final rules revise 36 CFR 261.10(a) to prohibit constructing, placing, or maintaining a sign on NFS lands or facilities without a written authorization, such as a special use authorization, contract, or approved plan of operations.

Comment: Multiple commenters believed that fireworks should be regulated more on NFS lands, that it was necessary to have a prohibition on use of fireworks and exploding targets on NFS lands, and that the Forest Service should strive to prevent fires on NFS lands.

Response: The proposed and final rules enhance fire prevention on NFS lands by moving prohibitions relating to fire that are currently enforceable only through issuance of an order under 36 CFR part 261, subpart B, to the prohibitions in 36 CFR part 261, subpart A, which are generally applicable to NFS lands and enforceable without issuance of an order. These prohibitions ban possession or use of fireworks or other pyrotechnic devices on NFS lands; violation of any State law concerning burning or fires or any State law whose purpose is to prevent or restrict the spread of fire; and operation or use of any internal or external combustion engine without a properly installed and maintained spark-arresting device that meets specified requirements. In addition, the proposed and final rules enhance fire prevention on NFS lands by prohibiting the possession or use of exploding targets on NFS lands.

Comment: One commenter wondered how proposed prohibitions involving controlled substances would be enforced in States where controlled substances are legal.

Response: It is a violation of Federal law for a person knowingly or intentionally to possess controlled substances (21 U.S.C. 844(a)). Forest Service law enforcement officers enforce 21 U.S.C. 844(a) on NFS lands, and in some circumstances off NFS lands, under the National Forest System Drug Control Act of 1986 (16 U.S.C. 559b-559g). Violations of 21 U.S.C. 844(a) require referral to the appropriate United States Attorney's Office for the filing of a complaint or information and prosecution before a United States District Court judge. In many instances, violations for simple possession of a controlled substance on NFS lands are not prosecuted under 21 U.S.C. 844(a) because they involve small amounts that are insufficient to meet applicable prosecutorial guidelines. The proposed and final rules provide an alternative to proceeding under 21 U.S.C. 844(a) by adding a prohibition against knowingly or intentionally possessing a controlled substance in violation of Federal law. Under this new prohibition, possession of small amounts of a controlled substance can be handled through issuance of a violation notice by a Forest Service law enforcement officer and prosecution before a United States magistrate judge as a Class B misdemeanor. Forest Service law enforcement personnel can continue to refer cases involving larger amounts of controlled substances that meet prosecutorial guidelines to the appropriate United States Attorney's Office.

Comment: Some commenters believed that violations involving controlled substances and alcoholic beverages should be prosecuted in State court and that the Forest Service should limit the scope of revisions to its law enforcement regulations regarding these types of violations. Additionally, some commenters believed that the Forest Service should use existing State law for enforcement of violations involving alcoholic beverages.

Response: Violations of Federal law on or affecting NFS lands, including violations of Federal laws involving controlled substances and prohibitions in the Forest Service's law enforcement regulations at 36 CFR part 261, subpart A, and orders issued under 36 CFR part 261, subpart B, are prosecuted in Federal court, not State court (16 U.S.C. 551). Forest Service law enforcement officers may enforce State law in certain circumstances. Under 16 U.S.C. 553, Forest Service law enforcement officers may aid in the enforcement of State laws pertaining to stock, fires, and fish and game on NFS lands if authorized by State officials. Under 16 U.S.C. 559d(5), Forest Service law enforcement officers may accept designations of law enforcement authority from State and local governmental agencies for purposes of cooperating in multi-agency investigations of violations of the Controlled Substances Act and other offenses committed in the course of or in connection with those violations. Under 16 U.S.C. 559g(c), Forest Service law enforcement officers may accept designations of law enforcement authority from State and local governmental agencies for purposes of cooperating with those agencies in investigation and enforcement if it is mutually beneficial and the Forest Service and the cooperating agency have entered into a memorandum of understanding or cooperative agreement. Some State statutes authorize peace officers to take limited actions in response to violations of State law in certain circumstances. When Forest Service law enforcement officers qualify as peace officers under State law, they may enforce State law.

The Department is extending the timeframe for leaving personal property unattended from 24 hours in the proposed rule to 72 hours in the final rule to accommodate certain types of recreational activities such as hunting, backpacking, and fishing trips and to be consistent with the Forest Service's regulations at 36 CFR 262.12, which establish a 72-hour timeframe for impoundment of property.

Executive Order (E.O.) 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will determine whether a regulatory action is significant as defined by E.O. 12866 and will review significant regulatory actions. OIRA has determined that this final rule is not significant as defined by E.O. 12866. E.O. 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the Nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The Department has developed the final rule consistent with E.O. 13563.

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

The final rule streamlines enforcement of criminal prohibitions in existing regulations by providing for enforcement without issuance of an order and enhances consistency of the Forest Service's law enforcement practices with those of State and other Federal land management agencies. Agency regulations at 36 CFR 220.6(d)(2) exclude from documentation in an environmental assessment or environmental impact statement “rules, regulations, or policies to establish service-wide administrative procedures, program processes, or instructions.” The Department has concluded that this final rule falls within this category of actions and that no extraordinary circumstances exist which would require preparation of an environmental assessment or environmental impact statement.

The Department has considered the final rule under the Regulatory Flexibility Act (RFA), 5 U.S.C. 602 et seq. The final rule streamlines enforcement of criminal prohibitions in existing regulations by providing for enforcement without issuance of an order and enhances consistency of the Forest Service's law enforcement practices with those of State and other Federal land management agencies. The final rule will not have economic effects on small entities as defined by the RFA. Therefore, the Department has determined that this final rule will not have a significant economic impact on a substantial number of small entities as defined by the RFA.

The Department has considered the final rule under the requirements of E.O. 13132, Federalism. The Department has determined that the final rule conforms with the federalism principles set out in this E.O.; will not impose any compliance costs on the States; and will not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, the Department has concluded that the final rule does not have federalism implications.

E.O. 13175, Consultation and Coordination with Indian Tribal Governments, requires Federal agencies to consult and coordinate with Tribes on a government-to-government basis on policies that have Tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. The final rule streamlines enforcement of criminal prohibitions in existing regulations by providing for enforcement without issuance of an order and enhances consistency of the Forest Service's law enforcement practices with those of State and other Federal land management agencies. The Department has reviewed this final rule in accordance with the requirements of E.O. 13175 and has determined that this final rule will not have substantial direct effects on 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. Therefore, consultation and coordination with Indian Tribal governments is not required for this final rule.

The Department has considered the final rule under the requirements of E.O. 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, and E.O. 14096, Revitalizing Our Nation's Commitment to Environmental Justice for All. The Department has determined that the final rule is not expected to result in disproportionate and adverse impacts on communities with environmental justice concerns or the exclusion of communities with environmental justice concerns from meaningful involvement in decisionmaking.

Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277), requires Federal agencies to issue a Family Policymaking Assessment for a rule that may affect family wellbeing. The final rule will have no impact on the autonomy or integrity of the family as an institution. Accordingly, the Department has concluded that it is not necessary to prepare a Family Policymaking Assessment for the final rule.

The Department has analyzed the final rule in accordance with the principles and criteria in E.O. 12630, Governmental Actions and Interference with Constitutionally Protect Property Rights. The Department has determined that the final rule will not pose the risk of a taking of private property.

The Department has reviewed the final rule under E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use . The Department has determined that the final rule will not constitute a significant energy action as defined in E.O. 13211.

The Department has analyzed the final rule in accordance with the principles and criteria in E.O. 12988, Civil Justice Reform. Upon publication of the final rule, (1) all State and local laws and regulations that conflict with the final rule or that impede its full implementation will be preempted; (2) no retroactive effect will be given to this final rule; and (3) it will not require administrative proceedings before parties may file suit in court challenging its provisions.

Pursuant to title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), the Department has assessed the effects of the final rule on State, local, and Tribal governments and the private sector. The final rule will not compel the expenditure of $100 million or more, adjusted annually for inflation, in any 1 year by State, local, and Tribal governments in the aggregate or by the private sector. Therefore, a statement under section 202 of the Act is not required.

The final rule does not contain any recordkeeping or reporting requirements or other information collection requirements as defined in 5 CFR part 1320 that are not already required by law or not already approved for use. Accordingly, the review provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) and its implementing regulations at 5 CFR part 1320 do not apply.

Therefore, for the reasons set forth in the preamble, the Department is amending chapter II of title 36 of the Code of Federal Regulations as follows:

The EPA is required to determine whether areas designated nonattainment for an ozone NAAQS attained the standard by the applicable attainment date, and to take certain steps for areas that failed to attain (see CAA section 181(b)(2)). The EPA's determination of attainment for the 2015 ozone NAAQS is based on a nonattainment area's design value (DV) as of the attainment date. 1

The 2015 ozone NAAQS is met at an EPA regulatory monitoring site when the DV does not exceed 0.070 parts per million (ppm). For the Moderate nonattainment areas for the 2015 ozone NAAQS addressed in this action, the attainment date was August 3, 2024. Because the DV is based on the three most recent, complete calendar years of data, attainment must occur no later than December 31 of the year prior to the attainment date ( i.e., December 31, 2023, in the case of Moderate nonattainment areas for the 2015 ozone NAAQS). As such, the EPA's determinations for each area are based upon the complete, quality-assured, and certified ozone monitoring data from calendar years 2021, 2022, and 2023.

This action addresses the Missouri portion of the St. Louis bi-State nonattainment area (hereafter St. Louis area) that was classified as Moderate for the 2015 ozone NAAQS as of the Moderate area attainment date of August 3, 2024. Table 1 provides a summary of the DVs and the EPA's air quality-based determinations for the St. Louis area.

The EPA is finding that the St. Louis area as shown in table 1 did not attain by the attainment date, because the 2021-2023 DVs are greater than 0.070 ppm. If the EPA determines that a nonattainment area classified as Moderate failed to attain by the attainment date, CAA section 181(b)(2)(B) requires the EPA to publish a document in the Federal Register , no later than 6 months following the attainment date, identifying each such area and identifying the applicable reclassification.

Under CAA section 181(b)(2)(A), the effect of this determination is that the St. Louis area will be reclassified by operation of law as Serious on the effective date of this final rule. The reclassified area will then be subject to the Serious area requirement to attain the 2015 ozone NAAQS as expeditiously as practicable, but not later than August 3, 2027.

Upon reclassification, stationary air pollution sources in the St. Louis ozone nonattainment areas will be subject to Serious ozone nonattainment area New Source Review (NSR) and title V permit requirements. The source applicability thresholds for major sources and major source modification emissions will be 50 tons per year (tpy) for volatile organic compounds (VOC) and nitrogen oxides (NO X ). For new and modified major stationary sources subject to review under Missouri regulation 10 CSR 10-6.060, in the EPA approved State implementation plan (SIP), 2 VOC and NO X emission increases from the proposed construction of the new or modified major stationary sources must be offset by emission reductions by a minimum offset ratio of 1.20 to 1 (see CAA section 182(c)(10)).

Once reclassified as Serious, Missouri must submit to the EPA the SIP revisions for this area that satisfies the statutory and regulatory requirements applicable to Serious areas established in CAA section 182(c) and in the 2015 Ozone NAAQS SIP Requirements Rule (see 83 FR 62998, December 6, 2018). The EPA is establishing deadlines for submitting SIP revisions for newly reclassified areas in a separate action.

On October 26, 2015, the EPA issued its final action to revise the NAAQS for ozone to establish a new 8-hour standard ( see 80 FR 65452, October 26, 2015). In that action, the EPA promulgated identical tighter primary and secondary ozone standards designed to protect public health and welfare that specified an 8-hour ozone level of 0.070 ppm. Specifically, the standards require that the 3-year average of the annual fourth highest daily maximum 8-hour average ozone concentration may not exceed 0.070 ppm.

Effective on August 3, 2018, the EPA designated 52 areas throughout the country as nonattainment for the 2015 ozone NAAQS (see 83 FR 25776, June 4, 2018). As part of that action, the EPA designated the St. Louis, MO-IL bi-State area as Marginal nonattainment for the 2015 Ozone NAAQS. The area included Boles Township of Franklin County, St. Charles County, St. Louis County, and St. Louis City in Missouri, and Madison and St. Clair Counties in Illinois. As part of that same action, EPA designated Jefferson County and the remaining portion of Franklin County, in Missouri, and Monroe County in Illinois, as attainment/unclassifiable. On July 10, 2020, the District of Columbia Circuit Court remanded the Jefferson County, Missouri, and Monroe County, Illinois, designations (among other designations) to the EPA. The Court upheld EPA's designation of Boles Township as nonattainment and the remainder of Franklin County as attainment/unclassifiable. In response to the Court remand, the EPA revised the Jefferson County, Missouri, and Monroe County, Illinois, designation to nonattainment on May 26, 2021 (86 FR 31438).

In a separate action, the EPA assigned classification thresholds and attainment dates based on the severity of an area's ozone problem, determined by the area's DV (see 83 FR 10376, May 8, 2018). The EPA established the attainment date for Marginal, Moderate, and Serious nonattainment areas as 3 years, 6 years, and 9 years, respectively, from the effective date of the final designations. Thus, the attainment date for Marginal nonattainment areas for the 2015 ozone NAAQS was August 3, 2021, the attainment date for Moderate areas was August 3, 2024, and the attainment date for Serious areas is August 3, 2027. On October 7, 2022 (87 FR 60897), the EPA determined that 22 areas, including the St. Louis area addressed in this action, did not attain the standards by the Marginal attainment date, and was reclassified as Moderate by operation of law.

The statutory authority for this determination is provided by the CAA, as amended (42 U.S.C. 7401 et seq. ). Relevant portions of the CAA include, but are not necessarily limited to, sections 181 and 182.

CAA section 107(d) provides that when the EPA establishes or revises a NAAQS, the agency must designate areas of the country as nonattainment, attainment, or unclassifiable based on whether an area is not meeting (or is contributing to air quality in a nearby area that is not meeting) the NAAQS, meeting the NAAQS, or cannot be classified as meeting or not meeting the NAAQS, respectively. Subpart 2 of part D of title I of the CAA governs the classification, state planning, and emissions control requirements for any areas designated as nonattainment for a revised primary ozone NAAQS. In particular, CAA section 181(a)(1) requires each area designated as nonattainment for a revised ozone NAAQS to be classified at the same time as the area is designated based on the extent of the ozone problem in the area (as determined based on the area's DV). Classifications for ozone nonattainment areas are “Marginal,” “Moderate,” “Serious,” “Severe,” and “Extreme,” in order of stringency. CAA section 182 provides the specific attainment planning and additional requirements that apply to each ozone nonattainment area based on its classification.

Section 181(b)(2)(A) of the CAA requires that within 6 months following the applicable attainment date, the EPA shall determine whether an ozone nonattainment area attained the ozone standard based on the area's DV as of that date. Under CAA section 181(a)(5) as interpreted by the EPA in 40 CFR 51.1307, upon application by any state, the EPA may grant a 1-year extension to the attainment date when certain criteria are met. One criterion for a first attainment date extension is that an area's fourth highest daily maximum 8-hour value for the attainment year must not exceed the level of the standard.

In the event an area fails to attain the ozone NAAQS by the applicable attainment date and is not granted a 1-year attainment date extension, CAA section 181(b)(2)(A) requires the EPA to make the determination that an ozone nonattainment area failed to attain the ozone standard by the applicable attainment date, and requires the area to be reclassified by operation of law to the higher of: (1) The next higher classification for the area, or (2) the classification applicable to the area's DV as of the determination of failure to attain. 3 Section 181(b)(2)(B) of the CAA requires the EPA to publish the determination of failure to attain and accompanying reclassification in the Federal Register no later than 6 months after the attainment date, which in the case of the Moderate nonattainment areas considered in this determination is February 3, 2025.

Once an area is reclassified, each state that contains a reclassified area is required to submit certain SIP revisions in accordance with its more stringent classification. The SIP revisions are intended to, among other things, demonstrate how the area will attain the NAAQS as expeditiously as practicable, but no later than August 3, 2027, the Serious area attainment date for the 2015 ozone NAAQS. Per CAA section 182(i), a state with a reclassified ozone nonattainment area must submit the applicable attainment plan requirements “according to the schedules prescribed in connection with such requirements” in CAA section 182(c) for Serious areas, but the EPA “may adjust applicable deadlines (other than attainment dates) to the extent such adjustment is necessary or appropriate to assure consistency among the required submissions.” The EPA is addressing the SIP revision and implementation deadlines for newly reclassified Serious areas, as well as the continued applicability of Moderate area requirements if they have not yet been met, in a separate rulemaking.

The level of the 2015 ozone NAAQS is 0.070 ppm. 4 Under the EPA regulations at 40 CFR part 50, appendix U, the 2015 ozone NAAQS is attained at a site when the 3-year average of the annual fourth highest daily maximum 8-hour average ambient ozone concentration ( i.e., DV) does not exceed 0.070 ppm. When the DV does not exceed 0.070 ppm at each ambient air quality monitoring site within the area, the area is deemed to be attaining the ozone NAAQS. Each area's DV is determined by the highest DV among monitors with valid DVs. 5 The data handling convention in appendix P dictates that concentrations shall be reported in “ppm” to the third decimal place, with additional digits to the right being truncated. Thus, a computed 3-year average ozone concentration of 0.071 ppm is greater than 0.070 ppm and would exceed the standard, but a computed 3-year average ozone concentration of 0.0709 ppm is truncated to 0.070 ppm and attains the 2015 ozone NAAQS.

The EPA's determination of attainment is based upon hourly ozone concentration data for calendar years 2021, 2022, and 2023 that have been collected and quality-assured in accordance with 40 CFR part 58 and reported to the EPA's Air Quality System (AQS) database. 6

State and local monitoring network plans are subject to approval by the EPA on an annual basis and any interim modifications to those plans must also be approved by the EPA. 7 The annual monitoring network plan process is provided in 40 CFR 58.10 and the requirements governing system modifications and monitor discontinuations are laid out in 40 CFR 58.14. Where state or local agencies seek to modify the ambient air quality monitoring networks by discontinuing a monitor station, the EPA may approve such modifications subject to the criteria established in 40 CFR 58.14(c). The EPA may not approve such discontinuation if doing so would compromise data collection needed for implementation of a NAAQS. If a monitor has been discontinued subject to 40 CFR 58.14 such that the discontinuation results in insufficient data to calculate a valid DV according to appendix U to 40 CFR part 50, the EPA will determine the applicable area's attainment status based on the remaining monitors in the area.

The EPA is determining that the St. Louis Moderate nonattainment area addressed in this action failed to attain the 2015 ozone NAAQS by the attainment date of August 3, 2024. As shown in table 1, at least one monitor in this area had a 2021-2023 DV greater than 0.070 ppm. The EPA has further determined that the St. Louis area did not meet the requirement under section 181(a)(5)(B) and 40 CFR 51.1307 necessary to grant a 1-year extension of the attainment date, because at least one monitor in the area had a 2023 fourth highest daily maximum 8-hour average that was greater than 0.070 ppm. Table 2 shows the annual fourth highest daily maximum 8-hour average ozone concentration and 2021-2023 DV for each monitor in the St. Louis, MO-IL area.

Pursuant to CAA section 181(b)(2), the EPA is determining that the St. Louis area failed to attain the 2015 ozone NAAQS by the applicable attainment date of August 3, 2024. Therefore, upon the effective date of this final action, the area will be reclassified, by operation of law, to Serious for the 2015 ozone NAAQS. Once reclassified as Serious, the area will be required to attain the standard “as expeditiously as practicable” but no later than 9 years after the initial designation as nonattainment, which in this case would be no later than August 3, 2027.

Section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that notice and public procedures are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. The EPA has determined that there is good cause for making this final agency action without prior proposal and opportunity for comment because our action to determine whether this area has attained the NAAQS by the attainment date is governed, per CAA section 181(b)(2)(A), solely by area design values as of that date. The area design values relied upon in this document are calculations based on the certified air quality monitoring data governed by EPA's regulations and involve no judgment or discretion. Thus, notice and public procedures are unnecessary to take this action. The EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(B).

This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Order 14094 (88 FR 21879, April 11, 2023).

This rule does not impose an information collection burden under the provisions of the PRA of 1995 (44 U.S.C. 3501 et seq. ). This action does not contain any information collection activities and serves only to make a final determination that the St. Louis nonattainment area failed to attain the 2015 ozone standards by the August 3, 2024, attainment date where such area will be reclassified as Serious nonattainment for the 2015 ozone standards by operation of law upon the effective date of the final reclassification action.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA (5 U.S.C. 601 et seq. ). This action will not impose any requirements on small entities. The determination of failure to attain the 2015 ozone standards (and resulting reclassifications), do not in and of themselves create any new requirements beyond what is mandated by the CAA. This final action would require the State to adopt and submit SIP revisions to satisfy CAA requirements and would not itself directly regulate any small entities.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538 and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local, or Tribal governments or the private sector.

This action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. The division of responsibility between the Federal Government and the States for purposes of implementing the NAAQS is established under the CAA.

Executive Order 13175 (65 FR 67249, November 9, 2000), requires the EPA to develop an accountable process to ensure “meaningful and timely input by Tribal officials in the development of regulatory policies that have Tribal implications.” This action does not have Tribal implications as specified in Executive Order 13175. This action does not apply on any Indian reservation land, any other area where EPA or an Indian Tribe has demonstrated that a Tribe has jurisdiction, or non-reservation areas of Indian country. Thus, Executive Order 13175 does not apply to this action.

The EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive order. This action is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks.

This action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.

This rulemaking does not involve technical standards. Therefore, the EPA is not considering the use of any voluntary consensus standards.

Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, February 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on communities with environmental justice (EJ) concerns to the greatest extent practicable and permitted by law. The EPA defines 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.” The 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 EPA did not perform an EJ analysis and did not consider EJ in this action. Due to the nature of the action being taken here, this 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 action, and there is no information in the record inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for communities with EJ concerns.

This rule is exempt from the CRA because it is a rule of particular applicability. The rule makes a factual determination for an identified entity, the St. Louis area, based on facts and circumstances specific to that entity. The determinations of attainment and failure to attain the 2015 ozone NAAQS do not in themselves create any new requirements beyond what is mandated by the CAA.

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 24, 2025. Filing a petition for reconsideration by the Administrator of this action does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of this action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

For the reasons stated in the preamble, 40 CFR part 81 is amended as follows:

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of 40 CFR part 180 through the Office of the Federal Register's e-CFR site at https://www.ecfr.gov/current/title-40.

Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2021-0308 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before January 24, 2025.

EPA's Office of Administrative Law Judges (OALJ), where the Hearing Clerk is housed, urges parties to file and serve documents by electronic means only, notwithstanding any other particular requirements set forth in other procedural rules governing those proceedings. See “Revised Order Urging Electronic Service and Filing”, dated June 22, 2023, which can be found at https://www.epa.gov/system/files/documents/2023-06/2023-06-22%20-%20revised%20order%20urging%20electronic%20filing%20and%20service.pdf. Although EPA's regulations require submission via U.S. Mail or hand delivery, EPA intends to treat submissions filed via electronic means as properly filed submissions; therefore, EPA believes the preference for submission via electronic means will not be prejudicial. When submitting documents to the OALJ electronically, a person should utilize the OALJ e-filing system at https://yosemite.epa.gov/OA/EAB/EAB-ALJ_Upload.nsf/HomePage?ReadForm.

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2021-0308, by one of the following methods:

• Federal eRulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

• Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001.

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at https://www.epa.gov/dockets/where-send-comments-epa-dockets#express.

Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at https://www.epa.gov/dockets.

In the Federal Register of June 1, 2021 (86 FR 29229) (FRL-10023-95), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the filing of a pesticide petition (PP IN-11401) by Innovative Reform Group, on behalf of The Clorox Company, 4900 Johnson Dr., Pleasanton, CA 94588. The petition requested that 40 CFR be amended by establishing an exemption from the requirement of a tolerance for residues of: (1-Methyl-2-(1,2,2-trimethylbicyclo[3.1.0]hex-3-ylmethyl)cyclopropyl)me thanol (CAS Reg. No. 198404-98-7); 1,4-Cineole (CAS Reg. No. 470-67-7); 1-Octen-3-ol (CAS Reg. No. 3391-86-4); 1-p-Menthene-8-thiol (CAS Reg. No. 71159-90-5); 2,3-Hexanedione (CAS Reg. No. 3848-24-6); 2,5-Dimethylpyrazine (CAS Reg. No. 123-32-0); 2,6-Dimethyl-4-heptanonem (CAS Reg. No. 108-83-8); 2,6-Dimethylpyrazine (CAS Reg. No.108-50-9); 2-Ethyl-1-hexanol (CAS Reg. No.104-76-7); 2-Ethyl-3-methylpyrazine (CAS Reg. No. 15707-23-0); 2-Heptanone (CAS Reg. No. 110-43-0); 2-Isobutyl-3-methoxypyrazine (CAS Reg. No. 24683-00-9); 2-Isopropyl-4-methylthiazole (CAS Reg. No. 15679-13-7); 2-Methoxy-3-(1-methylpropyl)pyrazine (CAS Reg. No. 24168-70-5); 2-Methyl-4-propyl-1,3-oxathiane (CAS Reg. No. 67715-80-4); 2-Methylpyrazine (CAS Reg. No. 109-08-0); 2-Nonanone (CAS Reg. No. 821-55-6); 2-Octanone (CAS Reg. No. 111-13-7); 2-sec-Butylcyclohexanone (CAS Reg. No. 14765-30-1); 2-Tridecanone (CAS Reg. No. 593-08-8); 2-Undecanone (CAS Reg. No. 112-12-9); 3,4-Dimethyl-1,2-cyclopentadione (CAS Reg. No. 13494-06-9); 3-Heptanone (CAS Reg. No. 106-35-4); 3-Methyl-1-cyclopentadecanone (CAS Reg. No. 541-91-3); 3-Methyl-2-(2-pentenyl)-2-cyclopenten-1-one, (Z)-(CAS Reg. No. 488-10-8); 3-Methyl-2-(2E)-2-penten-1-yl-2-cyclopenten-1-one (CAS Reg. No. 6261-18-3); 3-Methyl-2-(n-pentanyl)-2-cyclopenten-1-one (CAS Reg. No. 1128-08-1); 3-Methyl-5-(2,2,3-trimethylcyclopent-3-en-1-yl)pent-4-en-2-ol (CAS Reg. No. 67801-20-1); 3-Octanone (CAS Reg. No. 106-68-3); 4-Acetyl-6-t-butyl-1,1-dimethylindan (CAS Reg. No. 13171-00-1); 4-Hydroxy-2,5-dimethyl-3(2H)-furanone (CAS Reg. No. 3658-77-3); 5-Methyl-2-thiophenecarboxyaldehyde (CAS Reg. No. 13679-70-4); 5-Methyl-2-phenyl-2-hexenal (CAS Reg. No. 21834-92-4); 6,10-Dimethyl-5,9-undecadien-2-one (CAS Reg. No. 689-67-8); 6-Methyl-3,5-heptadien-2-one (CAS Reg. No. 1604-28-0); 6-Methyl-5-hepten-2-one (CAS Reg. No. 110-93-0); 8-Decen-5-olide (CAS Reg. No. 32764-98-0); Acetoin (CAS Reg. No. 513-86-0); Allyl cinnamate (CAS Reg. No. 1866-31-5); Allyl heptanoate (CAS Reg. No. 142-19-8); Allyl hexanoate (CAS Reg. No. 123-68-2); Allyl propionate (CAS Reg. No. 2408-20-0); alpha-Amylcinnamaldehyde (CAS Reg. No. 122-40-7); α-Butylcinnamaldehyde (CAS Reg. No. 7492-44-6); α-Hexylcinnamaldehyde (CAS Reg. No. 101-86-0); α-Isobutylphenethyl alcohol (CAS Reg. No. 7779-78-4); Cajeput oil (Melaleuca leucadendron L.) (CAS Reg. No. 8008-98-8); Cardamom (Elettaria cardamomum (L.) Maton) (CAS Reg. No. 85940-32-5); Cardamom seed oil (Elettaria cardamomum (L.) Maton) (CAS Reg. No. 8000-66-6); d,l-Isomenthone (CAS Reg. No. 491-07-6); d-Camphor (CAS Reg. No. 464-49-3); d-Fenchone (CAS Reg. No. 4695-62-9); dl-Camphor (CAS Reg. No. 21368-68-3); Ethyl maltol (CAS Reg. No. 4940-11-8); Ethyl vanillin (CAS Reg. No. 121-32-4); Eucalyptol (CAS Reg. No. 470-82-6); Eucalyptus oil (Eucalyptus globulus Labill) (CAS Reg. No. 8000-48-4); Isoamyl phenethyl ether (CAS Reg. No. 56011-02-0); Isojasmone (CAS Reg. No. 11050-62-7); Linalool oxide (CAS Reg. No. 60047-17-8); (Z)-Linalool oxide (CAS Reg. No. 5989-33-3); (E)-Linalool oxide (CAS Reg. No. 34995-77-2); Maltol (CAS Reg. No. 118-71-8); Maltyl isobutyrate (CAS Reg. No. 65416-14-0); Menthone (CAS Reg. No. 10458-14-7); Methyl dihydrojasmonate (CAS Reg. No. 24851-98-7); Methyl phenethyl ether (CAS Reg. No. 3558-60-9); Methyl cyclopentenolone (CAS Reg. No. 80-71-7); Nerol oxide (CAS Reg. No. 1786-08-9); Nootkatone (CAS Reg. No. 4674-50-4); Origanum oil (CAS Reg. No. 8007-11-2); Piperonal (CAS Reg. No. 120-57-0); Piperonyl acetate (CAS Reg. No. 326-61-4); p-Mentha-8-thiol-3-one (CAS Reg. No. 38462-22-5); Rosemary oil (Rosemarinus officinalis L.) (CAS Reg. No. 8000-25-7); Rue oil (Ruta graveolens L.) (CAS Reg. No. 8014-29-7); Sage oil, Spanish (Salvia lavandulaefolia Vahl.) (CAS Reg. No. 8022-56-8); Tetrahydro-4-methyl-2-(2-methylpropen-1-yl)pyran (CAS Reg. No. 16409-43-1); Theaspirane (CAS Reg. No. 36431-72-8); when used as an inert ingredient (fragrance components) in pesticide formulations applied to food contact surfaces in public eating places, dairy-processing equipment, and food-processing equipment with end-use concentrations not to exceed 33 ppm. That document referenced a summary of the petition prepared by Innovative Reform Group on behalf of The Clorox Company, which is available in the docket, https://www.regulations.gov. There were no comments received in response to the notice of filing.

Inert ingredients are all ingredients that are not active ingredients as defined in 40 CFR 153.125 and include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): Solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as carrageenan and modified cellulose; wetting, spreading, and dispersing agents; propellants in aerosol dispensers; microencapsulating agents; and emulsifiers. The term “inert” is not intended to imply nontoxicity; the ingredient may or may not be chemically active. Generally, EPA has exempted inert ingredients from the requirement of a tolerance based on the low toxicity of the individual inert ingredients.

Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings but does not include occupational exposure. When making a safety determination for an exemption for the requirement of a tolerance FFDCA section 408(c)(2)(B) directs EPA to consider the considerations in section 408(b)(2)(C) and (D). Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .” Section 408(b)(2)(D) lists other factors for EPA consideration making safety determinations, e.g., the validity, completeness, and reliability of available data, nature of toxic effects, available information concerning the cumulative effects of the pesticide chemical and other substances with a common mechanism of toxicity, and available information concerning aggregate exposure levels to the pesticide chemical and other related substances, among others.

EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be clearly demonstrated that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no harm to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.

Consistent with FFDCA section 408(c)(2)(A), and the factors specified in FFDCA section 408(c)(2)(B), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for the various fragrance components identified in Unit II of this document, including exposure resulting from the exemption established by this action. EPA's assessment of exposures and risks associated with these various fragrance components follows.

EPA has evaluated the available toxicity data and considered their validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the adverse effects caused by various fragrance components identified in Unit II, as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies are discussed in this unit.

The Agency assessed these fragrance components via the Threshold of Toxicological Concern (TTC) approach as outlined by the European Food Safety Authority (EFSA) in their 2019 guidance document on the use of TTC in food safety assessment. Information regarding the database of studies and chemicals used to derive TTCs are reviewed therein. The TTC approach has been used by the Joint Expert Committee on Food Additives of the United Nations' (U.N.) Food and Agriculture Organization and the World Health Organization (JECFA), the former Scientific Committee on Food of the European Commission, the European Medicines Agency, and EFSA.

Information from JECFA reports as well as predictive toxicology using the Organisation for Economic Co-operation and Development (OECD) Quantitative Structure-Activity Relationships (QSAR) Toolbox was used to confirm that the fragrances listed in Unit II have low carcinogenic potential and are thus good candidates for the application of the TTC method. Although 24 chemicals had in silico carcinogenicity alerts, JECFA concluded and EPA concurs that all fragrances listed in Unit II have low carcinogenic potential, based on in vitro and/or in vivo genotoxicity studies available on the chemical or structurally related chemicals. Therefore, the TTC method can be applied to these fragrances.

TTCs are derived from a conservative and rigorous approach to establish generic threshold values for human exposure at which a very low probability of adverse effects is likely. By comparing a range of compounds by Cramer Class (classes I, II, and III which correspond to the probability of low, moderate, and high toxicity) and NOEL (no-observed-effect-level), fifth percentile NOELs were established for each Cramer Class as “Human Exposure Thresholds”. These values were 3, 0.91 and 0.15 mg/kg/day for classes I, II, and III, respectively.

Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see https://www.epa.gov/pesticide-science-and-assessing-pesticide-risks/overview-risk-assessment-pesticide-program.

The human exposure threshold value for threshold ( i.e., non-cancer) risks is based upon Cramer structural class. All of the fragrance components listed in Unit II are in Cramer Class II, which is defined as chemicals of simple structure and efficient modes of metabolism, suggesting low oral toxicity. Therefore, the NOEL of 0.91 mg/kg/day is selected as the point of departure for all exposure scenarios assessed (chronic dietary, incidental oral, dermal and inhalation exposures).

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to each of the fragrance components listed in Unit II ( e.g. ingesting foods that come in contact with surfaces treated with pesticide formulations containing these fragrance components,and drinking water exposures), EPA considered exposure under the proposed exemptions at a concentration not to exceed 33 ppm for each of the listed fragrance components as well as any other sources of dietary exposure. EPA assessed dietary exposures from the fragrance components listed in Unit II in food as follows:

The dietary assessment for food contact sanitizer solutions calculated the Daily Dietary Dose (DDD) and the Estimated Daily Intake (EDI). The assessment considered application rates, residual solution or quantity of solution remaining on the treated surface without rinsing with potable water, surface area of the treated surface which comes into contact with food, pesticide migration fraction, and body weight. These assumptions are based on U.S. Food and Drug Administration guidelines.

2. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure ( e.g., textiles (clothing and diapers), carpets, swimming pools, and hard surface disinfection on walls, floors, tables).

The fragrance components listed in Unit II may be used as inert ingredients in products that are registered for specific uses that may result in residential exposure, such as pesticides used in and around the home. The Agency conducted a conservative assessment of potential residential exposure by assessing various fragrance components in disinfectant-type uses (indoor scenarios). The Agency's assessment of adult residential exposure combines high-end dermal and inhalation handler exposure from indoor hard surface, wiping, and aerosol spray uses. The Agency's assessment of children's residential exposure includes total post-application exposures associated with contact with treated indoor surfaces (dermal and hand-to-mouth exposures).

3. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

EPA has not found the fragrance components listed in Unit II to share a common mechanism of toxicity with any other substances, nor do they appear to produce a toxic metabolite produced by other substances. For the purposes of the tolerance exemptions established in this rule, therefore, EPA has assumed that the fragrance components listed in Unit II do not have common mechanisms of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at https://www.epa.gov/pesticide-science-and-assessing-pesticide-risks/cumulative-assessment-risk-pesticides.

Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the Food Quality Protection Act (FQPA) Safety Factor (SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor. The FQPA SF has been reduced to 1X in this risk assessment because clear NOELs and LOELs were established in the studies used to derive the endpoints (which included developmental and reproductive toxicity studies), maternal and developmental-specific 5th percentile NOELs indicate low potential for offspring susceptibility, and the conservative assumptions made in the exposure assessment are unlikely to underestimate risk.

EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.

1. Acute aggregate risk. An acute aggregate risk assessment takes into account acute exposure estimates from dietary consumption of food and drinking water. No adverse effects resulting from a single oral exposure were identified and no acute dietary endpoint was selected for any of the fragrance components listed in Unit II. Therefore, these fragrance components are not expected to pose an acute risk.

2. Short-term aggregate risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). For residential handler short-term exposure scenarios, MOEs ranged from 13,000 to 230,000, while for residential post-application exposure scenarios, MOEs ranged from 15,000 to 32,000. These MOEs are greater than the level of concern (LOC) of 100 and therefore are not of concern. The short-term aggregate MOE is 455 for adults and 168 for children, which are greater than the LOC of 100 and therefore are not of concern.

3. Intermediate-term aggregate risk. Intermediate-term aggregate exposure takes into account intermediate-term residential (dermal and inhalation) exposure plus chronic dietary exposure (food and drinking water). As the same endpoints were selected for short-term and intermediate-term exposures, intermediate-term aggregate risk is equal to the short-term aggregate risk, and it is not of concern.

4. Chronic aggregate risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to the fragrance components listed in Unit II from food and water will utilize 21% of the cPAD for the U.S. population and 58% of the cPAD for children 1 to 2 years old, the population group receiving the greatest exposure. Chronic residential exposure to residues of these fragrance components is not expected. Therefore, the chronic aggregate risk is equal to the chronic dietary exposure for children 1 to 2 years old (58% of the cPAD).

5. Aggregate cancer risk for U.S. population. There is low concern for genotoxicity/carcinogenicity in humans for the fragrance components listed in Unit II of this document. Therefore, the assessment under the TTC value for non-cancer risks is protective for all risks, including carcinogenicity.

6. Determination of safety. Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children, from aggregate exposure to residues of the fragrance components listed in Unit II.

An analytical method is not required for enforcement purposes since the Agency is not establishing a numerical tolerance for residues of the fragrance components listed in Unit II of this document in or on any food commodities. EPA is, however, establishing limitations on the amount of these fragrance components that may be used in antimicrobial pesticide formulations. These limitations will be enforced through the pesticide registration process under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. 136 et seq. EPA will not register any pesticide formulation for food use that contains these fragrance components in excess of 33 ppm in the final pesticide formulation.

Therefore, an exemption from the requirement of a tolerance is established for residues of various fragrance components listed in Unit II of this document when used as an inert ingredient (fragrance component) in pesticide formulations applied to food-contact surfaces in public eating places, dairy-processing equipment, and food-processing equipment and utensils with an end-use concentration not to exceed 33 ppm under 40 CFR 180.940(a).

This action establishes exemptions from the requirement of a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq. ), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the exemptions in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), do not apply.

This action directly regulates growers, food processors, food handlers, and food retailers, not States or Tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or Tribal governments, on the relationship between the National Government and the States or Tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq. ).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, for the reasons stated in the preamble, EPA is amending 40 CFR chapter I as follows:

Scientific integrity plays a vital role in the mission of HHS. Ensuring integrity in science throughout the Department allows HHS to foster and produce high-quality science, communicate effectively with the public, and base critical policy decisions on trustworthy and rigorous scientific findings. HHS has adopted a Department-wide scientific integrity policy to further strengthen scientific integrity and evidence-based policymaking throughout the Department.

The Scientific Integrity Policy of the U.S. Department of Health and Human Services (Policy) was approved on September 16, 2024. The finalized Policy was announced to the HHS community and posted on the HHS scientific integrity website, at https://www.hhs.gov/programs/research/scientificintegrity/index.html, on September 30, 2024. The effective date of the Policy is October 16, 2024.

The content of the finalized Policy, reformatted to conform to the requirements of the Federal Register , is provided below. This content is also available in its original format on the HHS website, at https://www.hhs.gov/sites/default/files/hhs-scientific-integrity-policy.pdf.

The purpose of this policy is to promote a continuing culture of scientific integrity at the U.S. Department of Health and Human Services (HHS). This policy aims to ensure the integrity of all aspects of HHS scientific activities, including proposing, conducting, reviewing, managing, and communicating about science and scientific activities, and using the results of science to inform policy and program decision-making.

The success of HHS's mission to enhance the health and well-being of all Americans depends on the development and use of accurate, complete, and timely scientific and technical information. Scientific integrity requires that such information be developed under and subjected to well-established scientific processes, free from inappropriate interference that undermines impartiality, nonpartisanship, or professional judgment. HHS agencies work to maximize the quality, accuracy, objectivity, utility, and timeliness of the scientific and technological information they produce, use, and disseminate. In turn, this information enables HHS to employ innovative approaches to effectively address the many public health and human services challenges that our work targets. These efforts allow accurate, complete, and timely scientific and technical information to improve the design, delivery, and impact of HHS policies and programs, and support equity, justice, and trust. Responsibility for upholding scientific integrity lies with the entire scientific ecosystem, including all HHS employees, its contractors and grantees, and those engaged in science and scientific activities outside HHS.

HHS adopts the following Official Federal Definition of Scientific Integrity:

HHS designates a senior career employee as the HHS Scientific Integrity Official (HHS SIO)  2 to oversee implementation and iterative improvement of the HHS Scientific Integrity Policy and related processes. The roles and responsibilities of the HHS SIO are described in more detail on pages 17-18.

This policy empowers the HHS SIO with the independence necessary to gather and protect information to support the review and assessment of scientific integrity concerns and ensure implementation of corrective scientific actions such as policy changes or correction or retraction of published materials. The HHS SIO also advocates for appropriate engagement of scientific leadership in decision making.

This policy is effective 30 days after the date of finalization. This policy will be reviewed by HHS one year after its effective date and every two years thereafter. Proposals to amend this policy will be overseen by the HHS SIO, in collaboration with the HHS Scientific Integrity Council described below and communicated to the Director of the White House Office of Science and Technology Policy (OSTP) no later than 30 days after adoption.

Scientific integrity is the responsibility of the entire HHS workforce. Covered individuals who are required to adhere to this policy include all HHS employees, including all Operating and Staff Division (OpDiv/StaffDiv) employees; Public Health Service Commissioned Corps officers; political appointees; HHS fellows, trainees, and interns; and advisory committee members in their capacity as special government employees, when in the course of their official duties they propose, conduct, review, or communicate about science and scientific activities, and all levels of employees who manage or supervise scientific activities and use scientific information in decision making.

HHS is composed of OpDivs/StaffDivs (hereinafter “Division”), some of which have division-specific scientific integrity policies and procedures. The HHS Scientific Integrity Policy applies to all covered individuals, as listed above; Division-specific Scientific Integrity policies apply to covered individuals within that division. Division-specific policies align with and support the HHS-wide policy at a minimum but may institute additional requirements and responsibilities as appropriate for the mission of the division. In addition to Division-specific policies, Divisions may develop their own scientific integrity procedures ( e.g., procedures for resolving differences of scientific opinion) at their discretion.

HHS contractors; partners; permittees; lessees; grantees; extramural trainees and fellows ( i.e., those supported by HHS grants to non-HHS organizations); and volunteers who engage or assist in HHS scientific activities are not considered covered individuals but are strongly encouraged to uphold the principles of scientific integrity described in this policy, particularly those described in the Protecting Scientific Processes, Ensuring the Free Flow of Scientific Information, Protections, and Professional Development sections. Specific requirements may be incorporated into the terms of their engagement with HHS. In addition, each institution that applies for or receives Public Health Service (PHS) support for biomedical or behavioral research, research training, or activities related to that research or research training must comply with 42 CFR part 93, PHS Policies on Research Misconduct, overseen by the HHS Office of Research Integrity (ORI), and may need to comply with other applicable laws, regulations, and policies. Research misconduct, which includes fabrication, falsification, and plagiarism, is one way in which scientific integrity can be compromised.

Pursuant to the 2021 Presidential Memorandum on Restoring Trust in Government Through Scientific Integrity and Evidence-Based Policymaking, 3 and consistent with the 2009 Presidential Memorandum on Scientific Integrity  4 and the 2010 Memorandum from the White House Office of Science and Technology Policy on Scientific Integrity, 5 all Federal agencies must establish a scientific integrity policy. The requirements of this policy are derived from the 2022 National Science and Technology Council (NSTC) Report of the Scientific Integrity Fast Track Action Committee (SI-FTAC), Protecting the Integrity of Government Science  6 (SI-FTAC Report), and align with the 2021 NSTC Framework for Federal Scientific Integrity Policy and Practice. 7

This policy is established in accordance with:

This policy will be implemented consistent with applicable federal law and Executive Orders.

For the purposes of this policy, HHS adopts the following definitions:

Allegation refers to a disclosure of a suspected loss of scientific integrity.

Corrective scientific action refers to actions taken to restore the accuracy of the scientific record after a loss of scientific integrity has been determined, consistent with this policy, such as correction or retraction of published materials.

Covered individuals who are required to adhere to this policy include all HHS employees; Public Health Service Commissioned Corps officers; political appointees; HHS fellows, trainees, and interns; and advisory committee members in their capacity as special government employees, when in the course of their official duties they propose, conduct, review, or communicate about science and scientific activities, and all levels of employees who manage or supervise scientific activities and use scientific information in decision making.

Decision making refers to the (1) development of policies or making determinations about policy or management; (2) making determinations about expenditures of Federal agency funds; (3) implementing or managing activities that involve, or rely on, scientific activities.

Ethical behavior refers to activities that reflect norms for conduct that distinguish between acceptable and unacceptable behavior, such as honesty, lawfulness, equity, and professionalism, and adherence to statutes, regulations, policies, and guidelines governing employee conduct.

Federal agency refers to an Executive department, a Government corporation, or an independent establishment.

Inclusivity refers to the practice of providing equal access to opportunities for full participation of all people and all groups, including marginalized, underserved, and underrepresented contributors, without bias or prejudice. Full participation is enabled through implementation of strategies that promote equitable access and fair treatment in the organization.

Inappropriate influence refers to the attempt to shape or interfere in scientific activities or the communication about or use of scientific activities, against well-accepted scientific methods and theories and without scientific, legal, or security justification. 8   9

Interference refers to inappropriate, scientifically unjustified intervention in the conduct, management, communication, or use of science. It includes censorship, suppression, or distortion of scientific or technological findings, data, information, or conclusions; inhibiting scientific independence during clearance and review; scientifically unjustified intervention in research and data collection; and inappropriate engagement or participation in peer review processes or on Federal advisory committees.

Loss of scientific integrity refers to the failure to comply with this Scientific Integrity Policy or to adhere to objectivity, transparency, and ethical behavior when conducting, managing, using the results of, and communicating about science and scientific activities. This loss may include research misconduct or inappropriate influence in the conduct, communication, management, and use of science.

Policy refers to laws, regulations, procedures, administrative requirements or actions, incentives, or voluntary practices of governments and other institutions.

Political interference is inappropriately shaping or interfering in the conduct, management, communication, or use of science for political advantage or such that it undermines impartiality, nonpartisanship, or professional judgment.

Research integrity refers to the use of honest and verifiable methods in proposing, performing, and evaluating research; reporting research results with particular attention to adherence to rules, regulations, and guidelines; and following commonly accepted professional codes or norms.

Research misconduct refers to fabrication, falsification, or plagiarism in proposing, performing, or reviewing research, or in reporting research results. Research misconduct does not include honest error or differences of opinion. 10

Research security refers to safeguarding the research enterprise against the misappropriation of research and development to the detriment of national or economic security, related violations of research integrity, and foreign government interference.

Retaliation refers to taking or failing to take or threatening to take or fail to take a personnel action with respect to any employee or applicant for employment because of any disclosure of information that the employee or applicant reasonably believes evidences any violation of any law, rule, or regulation or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive Order to be kept secret in the interest of national defense or the conduct of foreign affairs. An employee or applicant is protected from retaliation for the disclosure of information the employee or applicant reasonably believes is evidence of censorship related to research, analysis, or technical information. 11   12

Science refers to the full spectrum of scientific endeavors, including basic science, applied science, evaluation, engineering, technology, economics, social sciences, and statistics, as well as the scientific and technical information derived from these endeavors.

Scientific activities refer to activities that involve the application of well-accepted scientific methods and theories in a systematic manner, and includes, but is not limited to, data collection, inventorying, monitoring, evaluation, statistical analysis, surveying, observations, experimentation, study, research, integration, economic analysis, forecasting, predictive analytics, modeling, technology development, and scientific assessment, as well as any findings derived from these activities.

Scientific integrity is the adherence to professional practices, ethical behavior, and the principles of honesty and objectivity when conducting, managing, using the results of, and communicating about science and scientific activities. Inclusivity, transparency, and protection from inappropriate influence are hallmarks of scientific integrity.

Scientific record refers to published information resulting from scientific activities. HHS is responsible for ensuring the accuracy of elements of the scientific record that are published by HHS.

Scientist refers to an individual whose responsibilities include collection, generation, use, or evaluation of scientific and technical data, analyses, or products. HHS scientists are HHS employees and other covered individuals who conduct these activities. It does not refer to individuals with scientific and technical training whose primary job functions are in non-scientific roles ( e.g., policymakers, communicators).

HHS leadership at all levels recognizes, supports, and promotes this policy and its underlying principles, and models behavior consistent with a strong culture of scientific integrity.

HHS works to promote a culture of scientific integrity by creating an empowering environment for innovation and protecting scientists and the process of science from inappropriate interference. Scientific findings and products must not be suppressed, delayed, or altered for political purposes and must not be subjected to political interference or inappropriate influence.

A strong culture of scientific integrity begins with ensuring a professional environment that is safe, equitable, and inclusive. Issues of diversity, equity, inclusion, and accessibility are an integral component of the entire scientific process. Attention to these issues can improve the representativeness and eminence of the scientific workforce, foster innovation in the conduct and use of science, and provide for more equitable participation in science by diverse communities. The responsible and ethical conduct of research and other scientific activities requires an environment that is equitable, inclusive, safe, and free from harassment, and discrimination.

To instill and enhance a culture of scientific integrity, HHS has posted this policy prominently on its website, at https://www.hhs.gov/programs/research/scientificintegrity/index.html , and educates all covered individuals, as well as contractors who perform scientific activities for HHS, on their rights and responsibilities related to scientific integrity. Training will be made available to all covered individuals to make them aware of their responsibilities under the HHS Scientific Integrity Policy upon hiring, and some covered individuals may be required to complete role-specific training or refresher training as appropriate. Training will be tracked to ensure covered entities have received appropriate training.

HHS also works to apply scientific integrity practices in ways that are inclusive of non-traditional modes of science, such as citizen science, community-engaged research, participatory science, and crowdsourcing. This may include expanded scientific integrity practices and expectations, such as granting communities more autonomy over research questions and research design, recognition of data and knowledge sovereignty, and inclusion of multiple forms of evidence, such as Indigenous Knowledge, as applicable.

To promote a culture of scientific integrity at HHS, this policy outlines seven specific areas:

Scientific integrity fosters “honest scientific investigation, open discussion, refined understanding, and a firm commitment to evidence” (OSTP 2010). It also enables consideration and documentation of differing scientific opinions. Practices that support scientific integrity may include peer review and open science. Science, and public trust in science, thrives in an environment that prevents political interference and inappropriate influence from impacting scientific data and analyses and their use in decision making.

It is the policy of HHS to:

1. Prohibit political interference or other inappropriate influence in the design, proposal, conduct, review, management, evaluation, communication about, and use of scientific activities and scientific information.

2. Prohibit inappropriate restrictions on resources and capacity that limit and reduce the availability of science and scientific products ( e.g., manuscripts for scientific journals, presentations for workshops, conferences, and symposia) outside of normal budgetary or priority-setting processes or without scientific, legal, or security justification.

3. Require that leadership and management ensure that covered individuals engaged in scientific activities can conduct their work objectively, free from political interference or other inappropriate influence, and free from retaliation.

4. Require reasonable efforts by covered individuals to ensure the fidelity of the scientific record and to correct identified inaccuracies that pertain to their contribution to any scientific records.

5. Require that covered individuals represent their contributions to scientific work fairly and accurately and neither accept nor assume unauthorized and/or unwarranted credit for another's accomplishments. To be named as an author, contributors should, at a minimum, have (1) made a substantial contribution to the scientific product or provided editorial revisions that include critical intellectual content, (2) approved the final version, and (3) agreed to be accountable for all aspects of the work to which they contributed. Prior consent should be obtained from each author to be represented on a particular work. Obtaining prior consent for acknowledgements is also a good practice. This policy sets a minimum requirement for authorship attribution, and HHS OpDivs/StaffDivs may have additional authorship criteria. Different scientific disciplines use a range of strategies to attribute scientific work to individuals, and documents may be published without authorship attributions.

6. Ensure independent review of scientific facilities, methodologies, and other scientific activities as appropriate to ensure scientific integrity.

7. Require that covered individuals comply with HHS policies and procedures for planning and conducting scientific activities and show appropriate diligence toward protecting and conserving Federal research resources, such as equipment and other property, and records of data and results that are entrusted to them.

8. Prohibit research misconduct, the deliberate or reckless use of improper or inappropriate research methods or processes, and noncompliance with practices that safeguard the quality of research and other scientific activities or enhance research security.

9. Require that covered individuals design, conduct, manage, evaluate, and communicate about scientific research and other scientific activities honestly and thoroughly, and disclose any conflicts of interest to their supervisor or other appropriate HHS official(s) for their determination as to whether a recusal, disclaimer, or other action is appropriate, consistent with HHS ethics policies and procedures.

10. Require that research involving the participation of human subjects and the use of non-human animals is conducted in accordance with applicable, established laws, regulations, policies, and ethical considerations.

11. Support and enhance scientific integrity with the understanding that violations of scientific integrity can have a disproportional impact on underrepresented groups or weaken the equitable delivery of Federal Government programs.

12. Consistent with OSTP guidance and relevant HHS policy, prohibit HHS personnel engaged in intramural research from participating in foreign talent recruitment programs, unless participation is in an international conference or other international exchange, partnership, or program for which such participation has been approved by the appropriate authority in HHS. 13

13. Consistent with OSTP guidance and relevant HHS policy, require disclosure of participation in foreign talent recruitment programs, including the provision of copies of all grants, contracts, or other agreements related to such programs, and other supporting documentation related to such programs, as a condition of receipt of Federal extramural research funding awarded through HHS. 10

14. Prohibit the suspension or early termination of a grant except as consistent with applicable law and grants policies. 14   15   16

Open and timely communication of HHS science plays a valuable role in building public trust and understanding of HHS work. HHS facilitates the free flow of scientific and technological information and supports scientific integrity in the communication of scientific activities, findings, and products.

It is the policy of HHS to:

1. Facilitate the free flow of scientific and technological information, to the extent permissible by federal laws and regulations. Consistent with open government requirements, HHS will expand and promote access to scientific and technological information by making it available freely and without embargo to the public in an online digital format. 17   18

2. Ensure that scientific findings and products are not unduly suppressed, delayed, or altered for political purposes and are not subjected to inappropriate influence.

3. Require that technical review and clearance processes include provisions for timely clearance and expressly forbid censorship, unreasonable delay, and suppression of objective communication of data and results without valid scientific, legal, or security justification. Deviations from clearance policies or procedures that result in suppression, delay, or alteration of scientific and technological information without scientific, legal, or security justification may constitute violations of the HHS Scientific Integrity Policy and may be reported under the Procedures: Addressing Scientific Integrity Concerns section in this document.

4. Prohibit HHS officials, including communications officers, from altering, or directing HHS scientists and technology experts to alter, scientific and technological research findings or presentation of research findings in a manner that may compromise the objectivity or accurate representation of those findings.

5. Ensure that scientific information is accurately represented in responses provided by HHS to Congressional inquiries, testimony, and other requests.

6. Ensure that the work and conclusions of HHS scientists and the work and conclusions of scientists funded or supported by the federal government are accurately represented in HHS communications. If communication documents significantly rely on a scientist's research, identify them as an author, or represent their scientific opinion, the scientist will be given the option to review the scientific content of proposed communication documents prior to publication or public release.

7. Accurately represent the work and conclusions of scientists in HHS social media communications and provide appropriate guidance to HHS scientists on the use of HHS social media. If scientists whose work is represented in HHS social media identify any errors in those representations, HHS social media managers are responsible for making appropriate corrections expeditiously.

8. Require HHS or its OpDivs/StaffDivs, when offering spokespersons in response to media requests, to offer knowledgeable spokespersons who can, in an objective and nonpartisan manner, describe the relevant scientific or technological aspects of their work.

9. Ensure that HHS scientists may communicate their scientific activities objectively without political interference or other inappropriate influence, consistent with HHS and OpDivs/StaffDivs communication and media policies. Scientific products must adhere to relevant HHS technical review procedures.

10. Encourage, but not require, HHS scientists to communicate with the media in their official capacities regarding their scientific activities and areas of expertise, subject to limitations of government ethics rules. 19 In communicating with the media, HHS scientists are encouraged to seek advice from career HHS communications experts.

11. Allow covered individuals to communicate their personal or individual views to the media or the public in their personal capacities, including on social media, subject to the limitations of government ethics rules, HHS supplemental ethics regulations, social media regulations, and obligation to protect nonpublic information. 20 HHS scientists and other covered individuals presenting their personal views may name HHS as their employer as one biographical fact among several; however, their title and position cannot receive more prominence than any other biographical fact and they must make clear that they are presenting their personal and/or individual views—not the views of HHS—and they should not be sourced by the media as an HHS representative.

It is the policy of HHS to:

1. Ensure the quality, accuracy, and transparency of scientific information used to support policy and decision making, including by:

a. Using scientific information that is subject to well-established scientific processes.

b. Ensuring that scientific data and research used to support policy decisions undergo review by qualified experts, where feasible and appropriate, and consistent with law.

c. Adhering to the Office of Management and Budget Final Information Quality Bulletin for Peer Review. 21 For example, as described in the Bulletin, when independent peer reviews of scientific information products are conducted by contractors, a conflict-of-interest review will be conducted.

d. Reflecting scientific information appropriately and accurately and making scientific findings or conclusions considered or relied on in policy decisions publicly available online and in open formats, to the extent practicable.

2. Where legally permissible and appropriate, directly consult with scientists whose work is being used in policy and management decisions to ensure that the science is accurately represented and interpreted.

3. Ensure, to the extent possible, the accuracy of HHS communication of the science upon which a policy decision is based.

4. Ensure that the HHS SIO, with input from the HHS Scientific Integrity Council, develops a transparent mechanism for covered individuals to express differing scientific opinions free from political interference or inappropriate influence.

It is the policy of HHS to:

1. Ensure correction of the scientific record and implementation of corrective scientific actions when allegations of a loss of scientific integrity are substantiated. Corrective scientific actions may include correction or retraction of published scientific work or related media releases, release of inappropriately suppressed scientific materials, monitoring or supervision of future scientific activities, or required validation of data sources.

2. Encourage and facilitate early informal or formal consultation between employees and scientific integrity officials to advise on preventing loss of scientific integrity, to determine whether a loss of scientific integrity has potentially occurred, and to ascertain whether an allegation should be referred elsewhere for resolution.

3. Provide clear guidance on how to formally and confidentially report concerns and allegations of loss of scientific integrity. Those who report concerns and allegations need not be directly involved or witness a violation.

4. Ensure that the HHS SIO, together with other Scientific Integrity Council members, as applicable, draft procedures to respond to allegations of loss of scientific integrity at HHS in a timely, objective, and thorough manner. These procedures will include an initial assessment and review, a fact-finding process, an adjudication or determination including description of remedies and preventative measures to safeguard the science, an appeals process, follow-up to track implementation of remedies, and reporting. OpDivs/StaffDivs may develop and implement division-specific procedures for handling allegations within their Divisions.

5. These procedures will document the necessary aspects for each step of the process including burden of proof, any necessary determination of intentionality, and reporting, as well as the roles of the HHS SIO and HHS staff in the process.

6. Ensure that relevant HHS OpDivs/StaffDivs have scientific integrity policies that are consistent and in alignment with this policy.

HHS assures the protection of covered individuals as appropriate from retaliation in implementation of this policy.

It is the policy of HHS to:

1. Select and retain candidates for scientific and technical positions based on the candidate's scientific and technical knowledge, credentials, experience, and integrity, and hold them and their supervisors to the highest standards of professional and scientific ethics.

2. Promote diversity, equity, inclusion, and accessibility in the scientific workforce and create safe workspaces that are free from harassment and discrimination. Support scientists and researchers including, but not limited to, 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, queer, intersex, and asexual (LGBTQIA+) persons; persons with disabilities; persons who live in rural areas; and persons otherwise adversely affected by persistent poverty or inequality; and advance the equitable delivery of Federal programs.

3. Protect from retaliation those individuals who report in good faith allegations of loss of scientific integrity. Efforts will be made to protect the privacy of individuals involved in allegations.

4. Prevent HHS employees from intimidating or coercing scientists to alter scientific data, findings, or professional opinions or from inappropriately influencing scientific advisory boards.

5. Comply with whistleblower protections, specifically:

a. The requirements of the Whistleblower Protection Act of 1989, and its expanded protections enacted by Public Law 103-424 and the Whistleblower Protection Enhancement Act of 2012. 5 U.S.C. Part 2302(b)(8)-(9).

b. The National Defense Authorization Act's expansion of certain whistleblower protections to employees of federal government contractors, subcontractors, and grant recipients. 41 U.S.C. part 4712.

c. Presidential Policy Directive 19, which prohibits supervisors from taking, failing to take, or threatening to take or fail to take any action affecting an employee's eligibility for access to classified information in retaliation for making a protected disclosure.

d. The Military Whistleblower Protection Act (codified at 10 U.S.C. 1034), which is made applicable to the Public Health Service Commissioned Corps (PHSCC) officers through 42 U.S.C. 213a(a)(18), and implemented by Commissioned Corps Directive (CCD) 121.06.

6. The HHS SIO and OpDiv/StaffDiv SIOs are protected by all applicable employee rights as required by law. An SIO or other scientific integrity staff may only be terminated or reassigned for reasons consistent with applicable law. 22   23

HHS encourages its scientists and other covered individuals involved in HHS scientific activities to interact with the broader scientific community, in a manner that is consistent with Federal rules of ethics, employment responsibilities, and to the extent that is practical, given the availability of funding to support such interactions. 24

It is the policy of HHS to:

1. Encourage timely publication of research such as in peer-reviewed, professional, scholarly journals, HHS technical reports and publications or other appropriate outlets.

2. Encourage the sharing of scientific activities, findings, and materials through appropriate avenues including digital repositories.

3. Encourage participation in and presentation of research at professional meetings including workshops, conferences, and symposia.

4. When appropriate, permit service on editorial boards, as peer reviewers, or as editors of professional or scholarly journals.

5. When appropriate, permit participation in professional societies, committees, task forces, and other specialized bodies of professional societies, including removing barriers to serving as officers or on governing boards of such societies, to the extent allowed by law.

6. Permit government scientists to receive honors and awards for contributions to scientific activities and discoveries to the extent allowed by law, and to accrue the professional recognition of such honors or awards.

7. Permit HHS scientists to perform outreach and engagement activities, such as speaking to community and student groups, as part of their official duties, as appropriate.

Federal Advisory Committees (FACs), as defined by the Federal Advisory Committee Act, at https://www.gsa.gov/policy-regulations/policy/federal-advisory-committee-management/legislation-and-regulations/the-federal-advisory-committee-act, are an important tool within HHS for ensuring the credibility, quality, and transparency of HHS science. HHS will adhere to the Federal Advisory Committee Act and develop policies in coordination with the General Services Administration and consistent with the guidance on lobbyists serving on FACs when convening FACs tasked with giving scientific advice.

Consistent with all applicable laws and guidance regarding FACs, it is the policy of HHS to:

1. Promote transparency in the recruitment of new FAC members, including, when practical and appropriate, announcing vacancies with a notification in the Federal Register .

2. Select members to serve on a scientific or technical FAC based on expertise, knowledge, and contribution to the relevant subject area. Additional factors that may be considered are availability of the member to serve, alignment with relevant Federal Advisory Committee Membership Balance Plan, and the ability to work effectively on advisory committees. Ensure committee membership is fairly balanced in terms of points of view represented with respect to the functions to be performed by the FAC. 25

3. Comply with current standards governing conflict of interest as defined in statutes and implementing regulations.

4. Except when prohibited by law and to the extent practical, agencies should appoint members of scientific and technical FACs as Special Government Employees.

5. Treat all reports, recommendations, and products produced by FACs solely as the reports, recommendations, and products of such committees rather than of the U.S. Government, and thus not subject to intra- or inter-agency revision. The role of the FACs is to provide advice or recommendations to the agency. The agency may then craft policy based on the FACs' advice or recommendations if it chooses to adopt those recommendations.

HHS will establish a Scientific Integrity Council (Council) comprising one senior career employee from each relevant HHS OpDiv/StaffDiv. Relevant HHS divisions include those that conduct, manage, use, and communicate about scientific activities, as defined by the HHS Scientific Integrity Policy. The Council may engage with other HHS divisions as needed to support its responsibilities. The Council will be chaired by the HHS SIO. Where an OpDiv/StaffDiv has established a division SIO, that person will represent the division; where an OpDiv/StaffDiv has not established a division SIO, a similarly high-ranking career official with the appropriate scientific expertise, stature, and authority will represent the division.

Council members will ensure consistent implementation of the Scientific Integrity Policy at HHS, act as liaisons for their respective OpDivs/StaffDivs, assist with training and policy assessment, updates, and amendments, and be available to address any questions or concerns regarding this policy. The HHS SIO, together with the Council, will draft a Scientific Integrity Council Charter outlining criteria for selection as a member, other duties of members, and the frequency of meetings. The primary responsibilities of the Council are to:

1. Ensure that a well-informed and high-level group of experts supports scientific integrity at HHS.

2. Ensure that the HHS Scientific Integrity Policy is implemented consistently across the Department.

3. Review, assess, and revise the HHS Scientific Integrity Policy every two years, or more frequently as needed.

4. Serve on scientific integrity review panels and adjudicate allegations of losses of scientific integrity originating at HHS divisions that do not have their own scientific integrity policy, originating from more than one HHS division, or originating within the Office of the Secretary.

5. Determine handling of investigation and adjudication proceedings from which the HHS SIO is recused.

6. Engage HHS and division leadership in upholding the principles of scientific integrity, and maintain leadership awareness of scientific integrity issues as necessary and appropriate.

7. Support the education of all Department employees on their rights and responsibilities related to scientific integrity.

The HHS SIO, in conjunction with the Scientific Integrity Council, has developed the following procedures for addressing scientific integrity concerns, handling differing scientific opinions, and clearance of scientific products and communications.

The HHS SIO has primary responsibility for addressing scientific integrity concerns raised to the Department. The Scientific Integrity Council will support and assist the HHS SIO as needed. Full policies and procedures for handling scientific integrity concerns will be made available on the HHS website, at https://www.hhs.gov/programs/research/scientificbintegrity/index.html. HHS OpDivs/StaffDivs may have their own procedures for addressing scientific integrity concerns that arise in their own divisions. For information about rights and remedies against retaliation, employees may contact the HHS OIG Whistleblower Protection Coordinator. 26 In general:

1. Concerns about a potential loss of scientific integrity at HHS may be reported to the HHS SIO by any individual who has knowledge of the situation. Reporting may be done anonymously.

2. Employees of HHS or its OpDivs/StaffDivs are encouraged to seek an informal consultation with the HHS SIO or the relevant division SIO to discuss whether a concern constitutes a potential loss of scientific integrity before submitting a formal complaint. Employees ultimately have the discretion to submit a formal complaint as they see fit without reprisal.

3. If an OpDiv/StaffDiv has its own procedures in place for handling scientific integrity concerns, formal complaints submitted to HHS that involve actions and outcomes specific to that division will be directed to that division for follow up. For divisions without their own procedures, formal complaints will be handled by the HHS Scientific Integrity Council.

4. The HHS SIO, with the help of the Scientific Integrity Council as needed, will complete an initial assessment of each reported concern and determine whether to request additional information from the complainant or others and to determine whether a formal investigation is warranted.

5. Should an investigation be opened, an investigation committee consisting of the HHS SIO and at least two other Scientific Integrity Council members, or their delegates, will be convened. The committee will develop a factual record by exploring the allegation(s) in detail and consulting with subject matter experts, interviewing witnesses, and reviewing documentation as needed. This record will be documented in a report from the committee to the HHS SIO.

6. Once the investigation is complete and a report has been submitted to the HHS SIO, the HHS SIO will determine whether scientific integrity was lost, and if so, what corrective scientific actions are recommended.

7. The complainant and respondent will be given the opportunity to appeal a finding or any corrective scientific actions taken.

Science and decisions based on science are strengthened by vigorous discussion and debate and by considering all available evidence. The process of challenging and improving ideas helps to guard against inadequate science and flawed analysis. Scientists can hold differing opinions without violating scientific integrity, and HHS encourages its scientists to respectfully express and engage with differing views as an integral part of the scientific process. Differing scientific opinions are diverging views held by researchers who are substantively engaged in the science subject area. In some cases, such as when a scientific dispute has a significant impact on public health or policy, a formal scientific dispute resolution process may be necessary. The goal of scientific dispute resolution should be to ensure that all perspectives are heard and documented in an unbiased way. A satisfactory resolution may involve adopting one opinion over another, deciding to conduct additional studies, formulating an alternate theory reconciling the differing opinions, or documenting the disagreement for the benefit of policymakers and fellow scientists. HHS OpDivs/StaffDivs may have dispute resolution policies in place; employees of these divisions must follow any such policies and guidelines. If a division does not have a dispute resolution process already in place, the following steps may be used as a guide. These steps may be completed in any order and are not necessarily an exhaustive list of dispute resolution measures. In general:

• A team member or group of team members with a differing opinion may engage with their colleagues to resolve the issue as soon as the difference of opinion is known. HHS recommends this type of internal discussion as a first step in most dispute resolution proceedings.

• A team may choose to consult a manager. First-level managers may defer to an appropriate higher-level manager if the first-level manager has a conflict of interest or cannot offer an impartial opinion for any reason.

• If the matter cannot be satisfactorily resolved by other means, a team may request assistance from their division's SIO. The HHS SIO may be consulted if the division SIO requests their assistance, if there is no division SIO, or if there is a conflict of interest or perceived conflict of interest with the division SIO. The HHS SIO will review the dispute history and may recommend additional internal discussion, peer review, or involvement of subject matter experts. The HHS SIO may also serve as a mediator or engage the services of a professional mediator to help end the dispute. The HHS SIO acting in this capacity serves to uphold scientific integrity and will not advocate for a particular scientific position.

Scientific Integrity is everyone's responsibility. The following individuals have specific scientific integrity roles and responsibilities under this policy:

1. Provides leadership for HHS on scientific integrity, by leading through example, upholding scientific integrity principles, and regularly communicating the importance of scientific integrity.

2. Ensures that all HHS activities associated with scientific and technological processes are conducted in accordance with this policy.

3. Ensures that all supervisors and managers comply with this policy and ensures accountability for those who do not.

4. Ensures that violations of this policy are investigated to the full extent that is described herein, and that appropriate corrective scientific and/or administrative actions are taken as a result of such investigations.

5. Ensures that HHS scientific integrity efforts support HHS plans for making evidence-based policies, including the evidence-building plans required by 5 U.S.C. 312(a) and the annual evaluation plans required by 5 U.S.C. 312(b).

6. Provides adequate resources and funding to implement this policy including staffing, monitoring, evaluation, reporting, and training.

7. Ensures that SIOs are afforded all applicable career employee rights and appeals and are protected against retaliation of any kind.

8. Supports and respects the HHS SIO's independence, recommendations, and designation of and HHS compliance with corrective scientific actions when violations of this policy are substantiated. Assistance may be sought from the National Science and Technology Council (NSTC) Subcommittee on Scientific Integrity (SOSI) in cases of disagreement.

9. In cooperation with the HHS SIO, oversees the implementation and iterative improvement of policies and processes affecting the integrity of scientific activities funded, conducted, or overseen by HHS, as well as policies affecting the Federal and non-Federal scientists who support the scientific activities of HHS, including scientific-integrity policies.

10. Ensures that HHS establishes as necessary clear administrative actions for substantiated violations of this policy, designating responsibility for each aspect of accountability.

1. Is a designated, full-time equivalent, career employee who holds a permanent appointment and has appropriate scientific credentials and is designated at a senior level.

2. Oversees implementation and iterative improvement of scientific-integrity policies and processes, provides leadership on matters of scientific integrity, and serves as the primary HHS-level contact for questions regarding scientific integrity.

3. Leads training and outreach initiatives to facilitate employee awareness and understanding of this policy.

4. Serves as a neutral point of contact for receiving allegations of loss of scientific integrity, provides informal consultation for employees who have scientific integrity concerns, and adheres to privacy and confidentiality policies, as applicable.

5. Conducts an initial assessment of all formal complaints and submitted materials, following established procedures, to determine whether the allegations pertain to loss of scientific integrity and the appropriate handling of said allegations. Provides independent oversight of HHS responses to allegations of loss of scientific integrity referred for an inquiry or investigation, including:

a. Reviewing HHS-submitted reports of allegations and their disposition.

b. Maintaining a status report of responses to allegations as a means of monitoring the progress toward resolution.

6. Leads efforts to update this policy and any accompanying guidance, as appropriate.

7. Reports to the HHS Deputy Assistant Secretary for Science and Data Policy on matters involving scientific integrity.

8. Coordinates as necessary with the HHS Offices of Research Integrity (ORI), Human Research Protections (OHRP), Inspector General (OIG), the General Counsel (OGC), Human Resources, Civil Rights, the Assistant Secretary for Public Affairs, and the Chief Information Officer, among others.

9. Reports any potentially criminal behavior related to waste, fraud, abuse, or potential employee misconduct to OIG that is uncovered while responding to an allegation of loss of scientific integrity and coordinates as appropriate related to the referral provided to OIG.

10. Keeps the HHS Secretary informed on the status of the implementation of this policy and any compliance concerns, as warranted.

11. Publishes an annual scientific integrity report as described below.

12. Leads efforts for the iterative improvement of this policy and scientific integrity initiatives overall including development and implementation of an evaluation plan to regularly monitor and evaluate ongoing scientific integrity activities and outcomes.

13. To the extent possible, is involved in high level discussions and strategic planning on the recruitment, retention, development, and advancement of scientists—including scientists from underrepresented communities—to help ensure that scientific integrity is appropriately and carefully considered.

1. As delegated by the HHS SIO, oversees implementation and iterative improvement of scientific integrity policies and processes.

2. Coordinates with the HHS SIO in implementing scientific-integrity policies and processes.

3. Provides oversight for the implementation of the Scientific Integrity Policy at HHS.

4. Acts as liaisons for their respective HHS OpDivs/StaffDivs.

5. Assists with training and policy assessment, updates, and amendments.

6. Is available to address any questions or concerns regarding this policy.

7. Other duties as delegated.

1. Comply with and ensure HHS and employee compliance with the scientific integrity policy, including reporting or advising others on reporting allegations of loss of scientific integrity.

2. Make themselves aware of and uphold the principles contained in this policy. Lead through example by upholding scientific integrity principles and communicating the importance of doing so.

3. Report any knowledge of potential loss of scientific integrity to the HHS SIO or OpDiv/StaffDiv scientific integrity officials without reprisal.

4. Consult, as appropriate, with the HHS SIO or relevant OpDiv/StaffDiv SIOs, human resources officers, contracting and grant personnel, ethics officers, ORI, OIG, OGC, and the Office for Civil Rights.

1. Make themselves aware of the principles contained in this policy and how the policy applies to their duties.

2. Comply with this policy.

3. Adhere to accepted professional values and practices of the relevant research/scientific communities to which they belong.

4. Are encouraged to report to the HHS SIO or OpDiv/StaffDiv SIO any concern of loss of scientific integrity and are encouraged to report retaliation or potential criminal activity to the HHS OIG Hotline. 27

HHS will develop and implement an evaluation plan to regularly measure, monitor, and evaluate ongoing scientific integrity activities and outcomes. The plan will include a roadmap of activities, evaluation metrics, and methods of measurement for the purpose of ongoing improvement of SI processes, procedures, and policies. The plan will include expected metrics and measurement methods for evaluating the HHS Scientific Integrity Policy; workforce training; scientific integrity leadership, staffing, and communication; and reporting mechanisms. As part of the monitoring and evaluation plan, HHS will publish an annual report on the number and outcomes of investigations and appeals involving allegations of loss of scientific integrity. To the extent possible, all descriptions of investigations and appeals will be anonymized.

The plan shall also include a timeline for implementation and frequency of data collection, analysis, review, recommendations, and implementing recommendations. Monitoring and evaluation results, recommendations, and policy/procedure changes based on results will be reported to HHS leadership and will be made available to HHS staff and the public in a timely manner.

The HHS SIO, with input from the Scientific Integrity Council, is responsible for developing and making prominently available on HHS's public facing website, at https://www.hhs.gov/programs/research/scientificintegrity/index.html, an annual report to HHS leadership on the status of scientific integrity within HHS. The report shall highlight scientific integrity successes, accomplishments, or progress across HHS and identify areas for improvement and plans for addressing critical weaknesses, if any. The report shall describe progress toward achieving key metrics, including comparisons to the same metrics from prior years to show trends over time, whenever feasible. It will also include the number of investigations and appeals involving alleged or actual violations of this scientific integrity policy, including pending investigations and appeals. For investigations that have been resolved, the report will include an aggregate summary of the types of corrective actions recommended by the investigation panel to restore scientific integrity, and a summary of the types of actions ultimately taken.

Involving SIOs at HHS and its OpDivs/StaffDivs in the writing and updating of related policies can help provide needed perspectives before such policies are issued and better ensure they support scientific integrity. Officials should consider the scientific integrity-related components of other policies ( e.g., professional development of scientists, science-related communications, etc.) and determine where those other policies should be referenced, or perhaps reinforced, within the agency scientific integrity policy to help ensure their longevity. Violations of related and supporting policies may result in a loss of scientific integrity and it is appropriate for SIOs to coordinate with their agency counterparts in these matters.

SIOs should have an awareness of policies and programs that intersect with the development of the culture of scientific integrity within the agency. SIOs, where possible, shall be involved in the development or revision of the broader set of policies and practices that affect the culture and applicability of scientific integrity within HHS.

This is a summary of the Commission's Report and Order, in CC Docket No. 80-286, FCC 24-118, adopted and released on November 13, 2024. The full text of this document may be obtained from the following internet address: https://docs.fcc.gov/public/attachments/FCC-24-118A1.pdf. 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 and Governmental Affairs Bureau at (202) 418-0530 (voice) or (202) 418-0432 (TTY). This action arises from a Further Notice of Proposed Rulemaking and Order, FCC 24-71, released on July 1, 2024; 89 FR 58692 (July 19, 2024).

1. In this Report and Order, the Commission extends, for up to an additional six years, the freeze of the separations rules for rate-of-return incumbent LECs. In light of sweeping technological and regulatory changes in the marketplace and the resulting ongoing transition from traditional telephone service to broadband-based voice services, the separations rules play a substantially diminished role in allocating costs between the interstate and intrastate jurisdictions. This extension of the separations rules freeze will enable the Commission to continue to work with the Joint Board to determine the future of these rules, which were last revised more than 35 years ago in a vastly different telecommunications marketplace. We decline, however, to provide carriers an opportunity to change their current category relationships.

2. Given the technological and regulatory changes that have occurred over the past three and a half decades and the compliance burdens that the separations rules impose on the limited and declining number of small rural carriers still subject to them, we also refer to the Joint Board for their consideration the question of whether comprehensive reform is needed at this time or if the Commission should allow these rules to become obsolete over time. Because repeated freeze extensions of the separations rules have yet to produce substantive changes to these rules and consume limited government and industry resources, we also refer to the Joint Board the issue of whether a permanent freeze is warranted and, if so, whether carriers still using separations should be given the chance to unfreeze their category relationships every few years.

3. Jurisdictional Separations Process. Rate-of-return incumbent LECs use their networks and other resources to provide both interstate and intrastate telecommunications and other services. To prevent the recovery of the same costs from both the interstate and intrastate jurisdictions, the separations rules require that rate-of-return incumbent LECs divide their costs and revenues between the respective jurisdictions. These jurisdictional separations rules were designed to ensure that rate-of-return incumbent LECs apportion the costs of their regulated services between the interstate or intrastate jurisdictions in a manner that reflects the relative use of their networks to provide interstate or intrastate telecommunications services.

4. Jurisdictional separations is the third step in a four-step cost-based regulatory rate-making process. First, a rate-of-return carrier records its costs and revenues in various accounts using the Uniform System of Accounts prescribed by the Commission's part 32 rules. Second, the carrier divides the costs in these accounts between regulated and nonregulated activities in accordance with the Commission's part 64 rules, a step that helps ensure that the costs of nonregulated activities will not be recovered through regulated interstate rates. Third, the carrier separates the regulated costs and revenues between the interstate and intrastate jurisdictions using the Commission's part 36 jurisdictional separations rules. Finally, the carrier apportions the interstate regulated costs among the interexchange services and the rate elements that form the basis for its cost-based interstate rates. Carriers subject to rate-of-return regulation perform this apportionment in accordance with the Commission's part 69 rules.

5. To comply with the Commission's cost-based ratemaking rules, rate-of-return incumbent LECs must perform annual cost studies that include jurisdictional separations. The cost studies directly assign or allocate the regulated costs and revenues to various part 36 categories. Amounts in categories that are used exclusively for either interstate or intrastate communications are directly assigned to the appropriate jurisdiction. Costs that fall in categories that support both interstate and intrastate services are divided between the jurisdictions using allocation factors developed in accordance with part 36 that reflect relative use or a fixed percentage.

6. In addition to being used for developing cost-based rates, separations is also used as part of the process to determine universal service support. The administrator of the federal universal service support program, the Universal Service Administrative Company, uses separations categorization results for calculating high-cost loop support for certain legacy support carriers. In addition, some states use separations results to determine the amount of intrastate universal service support and to calculate regulatory fees, and some states perform intrastate rate-of-return ratemaking using the assigned or allocated intrastate costs.

7. Attempts at Separations Reform and Separations Freezes. In 1997, recognizing that “changes in the law, technology, and market structure of the telecommunications industry” necessitated a thorough reevaluation of the jurisdictional separations process, the Commission initiated a proceeding to comprehensively reform the separations rules. At the same time, pursuant to section 410(c) of the Communications Act of 1934, as amended (the Communications Act), the Commission referred the matter of jurisdictional separations reform to the Joint Board for a recommended decision.

8. In 2000, the Joint Board—comprised of both State and Federal members—issued a recommendation that the Commission freeze the part 36 category relationships and jurisdictional allocation factors pending resolution of comprehensive reform. In 2001, the Commission adopted an order concluding that a freeze would stabilize the separations process pending reform by minimizing any impact of cost shifts on separations results due to circumstances—such as the growth of internet usage, new technologies, and local competition—not contemplated by the rules. The Commission also determined that a freeze would simplify the separations process by eliminating the need for many separations cost studies until separations reform was implemented. Accordingly, the Commission froze all carriers' part 36 jurisdictional allocation factors at the percentages the carriers were using at that time, and allowed rate-of-return carriers to voluntarily freeze their category relationships, enabling each carrier to determine whether such a freeze would be beneficial “based on its own circumstances and investment plans.” Thus, at a minimum, rate-of-return carriers' jurisdictional allocation factors are frozen at the December 31, 2000 level, which allows these carriers to avoid the considerable burdens associated with conducting the traffic studies otherwise needed to comply with the rules for allocating investments and expenses between the intrastate and interstate jurisdictions.

9. The Commission specified that the 2001 freeze would last five years or until the Commission completed comprehensive separations reform, whichever came first. The Commission also concluded that, prior to the expiration of the five-year period, the Commission would, in consultation with the Joint Board, determine whether the freeze period should be extended, explaining that “the determination of whether the freeze should be extended at the end of the five-year period shall be based upon whether, and to what extent, comprehensive reform of separations has been undertaken by that time.” Since 2001, the Commission has extended the separations freeze eight times, for periods ranging from one year to six years, with the most recent extension expiring on December 31, 2024.

10. In 2009, the Commission made another referral to the Joint Board, asking it to consider comprehensive jurisdictional separations reform as well as “an interim adjustment of the current jurisdictional separations freeze.” In 2018, the Commission referred to the Joint Board two specific interim issues for consideration pending comprehensive reform. These issues included exploring the possibility of amending separations rules to acknowledge that certain carriers are no longer bound by them, as well as updating existing recordkeeping requirements to align with the current applicability of separations rules. To date, the Joint Board has yet to submit a recommended decision on any interim adjustments or comprehensive separations reform.

11. 2024 Further Notice of Proposed Rulemaking and Order. On July 1, 2024, the Commission released a Further Notice of Proposed Rulemaking (89 FR 58692; July 19, 2024), inviting comment on its proposal to extend the separations freeze for another six years, given “the limited options available to the Commission under the current circumstances.” The Commission expressed its desire to continue working with the Joint Board and sought comment on its proposed finding that the benefits of an extension far outweigh the potential harm carriers could face if the freeze was not extended, permitting “the long-fallow and outdated separations rules to take effect on January 1, 2025.”

12. In the Order (89 FR 58631; July 19, 2024) that accompanied the Further Notice of Proposed Rulemaking, the Commission renewed the prior referrals to the Joint Board, including both the 1997 and 2009 comprehensive reform referrals and the 2018 interim reform measures referral. The Commission explained that it renewed these referrals in light of the need to achieve reform of the separations rules, given their declining applicability as a result of substantial telecommunications market and federal-state regulatory framework changes since these referrals were first made.

13. Four of the five parties that filed comments or reply comments in this proceeding unconditionally support a six-year or longer freeze extension, and the other commenter stated it would support “a two-year extension or any longer extension endorsed by the majority of the members of the Separations Joint Board.” The four State members, which make up a majority of the Joint Board, made such an endorsement, supporting the proposed six-year freeze in an ex parte filing. The State members explained that “all three FCC Commissioners on the Joint Board, including the Chair [Commissioner Starks], voted to propose a six year extension,” and the State members “agree with the federal members of the board that a six-year extension is appropriate.”

14. We extend the freeze on Part 36 category relationships and jurisdictional allocation factors up through December 31, 2030, if necessary. We find this extension will best serve the public interest. The record unanimously demonstrates that an extension of the separations freeze beyond its scheduled December 31, 2024 expiration date will provide stability to carriers and further the Commission's ability to work with the Joint Board to consider how best to address the antiquated separations rules in today's telecommunications landscape. In determining the extension timeframe, we find that the record supports an extension of up to six additional years unless, after receipt of a Joint Board recommended decision on its referrals, the Commission adopts an order acting on the recommended decision sooner than December 31, 2030.

15. To fully address the future course of the separations rules, we also refer to the Joint Board three additional issues for their consideration in conjunction with the other pending referral issues. First, we ask the threshold question of whether comprehensive reform is even necessary any longer given current market conditions and the fact that the need for separations rules is naturally diminishing while the burden of complying with any new set of rules, were they to be reformed, would be substantial. Second, we refer to the Joint Board the question of whether a permanent freeze is warranted at this time. If so, we finally ask whether carriers still using separations should be given an opportunity, offered periodically, to unfreeze their category relationships.

16. We find that, based on the record and the fast approaching expiration of the current freeze extension on December 31, 2024, it is imperative to extend the freeze before it expires. All commenters agree that a continuation of the freeze is necessary, and the majority unconditionally support at least a six year extension. Consistent with precedent, the Commission has determined that freeze extensions—which essentially maintain the status quo—are within the scope of the original referral to the Joint Board for a recommended decision in 2001 and has extended the freeze several times without making an additional referral. Instead, the Commission has typically consulted with and received letters supporting freeze extensions from State members of the Joint Board prior to acting. The Commission's actions here are consistent with NARUC's and the State members' position.

17. Process Considerations. Section 410(c) of the Communications Act contemplates a Joint Board recommendation on the pending comprehensive reform referral before the Commission moves forward on comprehensive separations reform. All parties that submitted filings in the record, including the Joint Board's new State members, generally agree with the Commission's assessment that recent changes to the composition of the Joint Board, the complex nature of the work required to develop comprehensive recommendations for separations reform, and the fact that the current freeze expires at the end of this calendar year have combined to leave limited and insufficient time within which the Joint Board could develop and advance recommended decisions and the Commission could act on such recommendations. This Joint Board has recently seated several new members who are just beginning their opportunity to delve into the complicated issues inherent in determining the future of the separations rules. Extending the freeze will provide the Commission and the Joint Board the additional time necessary to engage in the work to achieve our goals, and commenters unanimously agree on the importance of extending the freeze.

18. Benefits Outweigh the Costs. We continue to find, based on the record here, that an extension of the freeze provides numerous benefits to carriers and is essential to avoid imposing significant costs and burdens on carriers that otherwise would be subject to the rules. Commenters point out that extending the freeze would provide “a measure of consistency and reliability of revenues.” Additionally, according to commenters, the Commission's regulatory initiatives “have changed the way that rural consumers obtain voice and data services, as they increasingly transition to wholly interstate broadband only services in place of traditional regulated voice services,” which makes reinstating the old separations cost studies for these carriers difficult to justify. Further, commenters indicate that the allocation between interstate and intrastate services naturally balances out as carriers switch to broadband only services, and thus the cost of continuing the use of frozen category relationships and allocation factors for those carriers is not significant. In short, maintaining the current separations regime provides stability to carriers.

19. In contrast, the costs to carriers of complying with part 36 rules if the freeze is allowed to expire are significant. The Commission has consistently found that letting the freeze expire would impose considerable burdens on carriers, particularly smaller rural carriers, and create undue instability. In extending the most recent freeze in 2018, the Commission explained that lifting the freeze and reinstating the separations rules after an absence of more than two decades, would make it extremely difficult, if not impossible, for most carriers to perform all of the studies needed to remain in full compliance. Parties in this proceeding confirm that is still the case. Commenters confirm that application of the rules would require substantial training and investment by rural incumbent LECs, and could cause significant disruptions to regulated rates, cost recovery, and other operating conditions when applying the outdated separations rules to today's operations. Indeed, we agree with NECA that “[r]emoval of the current freeze would necessitate . . . resources that would better be utilized to deploy advanced networks and provide service to consumers.” Thus, we continue to find that extension of the freeze is in the public interest.

20. Length of the Freeze Extension. We find that our proposed extension of up to six years is most appropriate under the circumstances and supported by the record. In fact, certain commenters would support an even longer extension. When the Commission extended the freeze for six years in 2018, it concluded that this time period best balances the competing considerations of a longer or shorter extension period. Commenters support an extension that is sufficient to “allow the Commission, the Federal-State Joint Board on Separations, and industry stakeholders time to determine the most effective way to address future separations issues.” The Commission has previously explained that a six-year extension enables the Joint Board to focus on solving the complex issues versus the Commission's experience in granting a series of short-term separations extensions in the past. We find that this is particularly true today. Indeed, as several new members of the Joint Board are beginning to engage with the question of how to effectively address separations issues in line with a modern public communications network, all Federal and State members of the Joint Board agree that six years is the appropriate timeframe for an extension.

21. The only commenter, NARUC, that proposed a shorter than six-year extension did so with the caveat that it would also support “any longer extension endorsed by the majority members” of the Joint Board. The State members of the Joint Board, which constitute the majority of the Joint Board, have endorsed a six-year extension, thus satisfying NARUC's caveat, and making support in the record to a six-year freeze extension unanimous. As the State members note, “all three FCC Commissioners [that are also members of] the Joint Board, including the Chair, voted to propose a six year extension.”

22. We decline to grant carriers another one-time option to unfreeze category relationships. Unfreezing category relationships would allow carriers to allocate regulated investments and expenses among the part 36 separations categories/sub-categories based on fresh cost studies. Relatedly, we also decline to grant carriers an option to freeze category relationships. We find that there is insufficient basis in the record to support a need to modify the separations freeze by providing carriers with either of these additional options. Only two commenters proposed possible modifications to the freeze. In 2018, the Commission granted rate-of-return carriers with frozen category relationships a one-time opportunity to unfreeze them going forward. Only three carriers took advantage of that opportunity then and the limited record here suggests a similar result would occur were we to adopt that same option now.

23. We are not persuaded, based on the record, that there is a need to provide an unfreeze option at this time, particularly in light of other opportunities the Commission has provided over the past several years that enabled rate-of-return carriers to opt out of the separations process partially or altogether. For example, since 2018, 348 rate-of return carriers have accepted the Commission's offers to receive model-based Alternative Connect America Cost Model (A-CAM) or fixed high cost universal service support and transition certain business data services (BDS) from rate-of-return to incentive regulation. More generally, as a result of the Commission's intercarrier compensation and universal service reforms, many carriers are no longer subject to cost-based regulation or the separations rules for any of their services. To the extent rate-of-return carriers believe they have a need to address problems or inaccuracies caused by frozen category relationships based on old data, they may seek a waiver of the category relationships freeze rules, as carriers have in the past.

24. As for adopting a new freeze option, either alone or coupled with an unfreeze option, we would also require a more developed record before determining whether to permit carriers that did not freeze their category relationships in 2001 to freeze them or permit carriers that elected to freeze category relationships in 2001 to unfreeze and then refreeze them. In 2001, “[f]ewer than 100 rate-of-return incumbent carriers elected to freeze their category relationships.” In 2018, the Commission declined to allow companies to unfreeze and then refreeze their category relationships, explaining that, based on the record at that time, this option risked the possibility of gamesmanship. Although one commenter suggests procedures that possibly could prevent gamesmanship or double-recovery, the record lacks sufficient information to accurately assess the benefits and drawbacks of adopting these options today.

25. In any event, our referral below to the Joint Board includes the question of whether periodic opportunities to unfreeze category relationships are necessary in conjunction with our referral regarding a potential permanent freeze. The Joint Board's recommendation on this issue will provide valuable input to taking future action that give carriers opportunities to recalibrate their category relationships.

26. Both the Commission and commenters have acknowledged that comprehensive reform is an arduous undertaking that would involve revising complex ratemaking rules and numerous Universal Service Fund (USF) programs that rely on the current separations framework. This task is further complicated by the fact that, after more than two decades since the Commission made the original referral of comprehensive reform to the Joint Board, regulatory agencies and the industry have substantially reduced personnel and resources with the expertise to conduct and evaluate full-scale cost studies. In the meantime, regulatory changes and consumer demand have transformed the telecommunications industry from one that was largely reliant on cost-based ratemaking to one where only a small and declining fraction of small rural carriers are still required to use separations to set their rates and calculate USF support. A small subset of rate-of-return carriers are the only remaining carriers required to comply with these rules. As a result of the Commission's intercarrier compensation rate reforms, offers of fixed model-based A-CAM support programs, and the ongoing technological transition from traditional voice services to broadband, the number of rate-of-return carriers subject to the separations rules have been ever decreasing. Based on internal staff analysis, there are currently, out of approximately 1,107 rate-of-return carriers, only about 247 carriers that receive cost-based USF support and make the full use of separations to set end-user common line, BDS, and Consumer Broadband-Only Loop service rates, as well as to determine the level of USF support.

27. To save carriers, particularly small carriers, from the burden of having to conduct all of the cost studies needed for full compliance with the separations rules, the separations freeze has been extended eight times over the past 23 years. However, these small carriers may face the same, if not a heavier, burden of complying with any potentially revised cost allocation methodology if the Joint Board were to develop a recommended decision on comprehensive reform and the Commission were to adopt it. We agree with concerns in the record by present and past commenters that compliance with comprehensive reform would “necessitate the hiring or retraining of staff—assuming commercial expertise can even be found to do so—and revising of internal procedures in ways that could overwhelm [the small carriers'] operations.” Thus, there is evidence in the record indicating that the expediency of comprehensively reforming the separations rules may have lost its urgency or value over the past 23 years.

28. Some commenters suggest that the Joint Board should assess whether “the separations framework . . . is better viewed as transitioning itself organically toward an eventual sunset, rather than something in need of fundamental reform and revision.” Other commenters also question “the relevance and need for jurisdictional separations processes and rules.” NECA asserts that “[i]n this environment [of naturally transitioning to broadband only services], it makes little sense to reinstate traditional separations rules.” NTCA believes that technological transitions, consumer demand and regulatory reforms have “moot[ed] the need for sweeping separations reform by enacting changes of their own accord.” We agree that the current separations rules may have the effect of promoting and encouraging the transition from traditional voice-only telephone lines to standalone broadband or VoIP services. In fact, we also acknowledge that revamped, comprehensive reform of separations rules may actually encourage carriers to cling to the old technology.

29. Clarifying the Scope of the Prior Comprehensive Reform Referral. Although the scope of the 1997 referral is quite broad—asking the Joint Board to explore questions ranging from specific comprehensive reform proposals to questions on “whether separations rules are still needed during the transition from a regulated to a competitive marketplace”—we find it appropriate to specifically reiterate a prior referral question and ask the Joint Board to consider, in particular, whether it should still pursue comprehensive reform especially given the diminishing relevance of the separations rules. Accordingly, we ask the Joint Board for a recommended decision on whether comprehensive reform is still in the public interest when the industry is naturally transitioning away from legacy technologies and cost-based ratemaking, and the burdens of compliance with any revised separations rules would be significant for the limited number of small carriers still subject to the separations rules.

30. Referral of Considering a Permanent Freeze Extension. Given the record emphasis by commenters advocating for a longer than six-year freeze or even a freeze of unlimited duration, we refer to the Joint Board the question of whether a permanent freeze of the separations rules is appropriate at this time. As we have explained, over the past 23 years, the Commission has gone through eight full rulemaking cycles to continually extend the freeze; this current proceeding is its ninth such rulemaking. The Commission has never permitted the freeze to expire because allowing it to lapse would reinstate overnight obsolete rules, and would impose undue instability, disruption, and administrative burdens on affected carriers. We agree with commenters that these “repeated short-term extensions consume valuable and limited government and industry resources.” Accordingly, we find that exploring the possibility of a permanent freeze is warranted.

31. This referral to the Joint Board to consider a permanent freeze is particularly relevant in light of our referral to the Joint Board on whether the separation rules still need to be reformed. If the Joint Board decides that comprehensive reform of the separations rules is no longer necessary, and the separations rules should be allowed to become obsolete through technological transitions and regulatory reforms, then a permanent freeze appears to be prudent. Accordingly, we ask the Joint Board for a recommended decision on whether it would be in the public interest to adopt a permanent freeze of the separations rules while it considers the future course of the separations rules and framework.

32. In addition, if the Joint Board recommends a permanent separations freeze, we ask the Joint Board to assess whether the Commission should allow carriers to unfreeze their category relationships, and if so, consider related questions—such as whether this should be a one-time opportunity or an option that is extended every few years, and whether or not these carriers should be permitted to refreeze their category relationships. We recognize that if the Joint Board recommends, and the Commission adopts, a permanent separations freeze, some carriers may have a greater need to adjust their category relationships to provide more accurate data for categorizing their investments, and we look forward to the Joint Board's input.

33. Paperwork Reduction Act. This document does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198.

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

35. Final Regulatory Flexibility Certification (FRFC). The Regulatory Flexibility Act of 1980 (RFA) requires that an agency prepare a regulatory flexibility analysis for notice and comment rulemakings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” The two statutorily mandated criteria to be applied in determining the need for RFA analysis are (1) whether the adopted rules would have a significant economic effect, and (2) if so, whether the economic effect would directly affect a substantial number of small entities. In this FRFC, the Commission has determined that extending the separations rules freeze will not have a significant economic impact on a substantial number of small entities.

36. The purpose of the current extension of the freeze is to allow the Commission and the Joint Board additional time to consider the future course of the separations rules and process in light of changes in the law, technology, and market structure of the telecommunications industry without creating the undue instability and administrative burdens that would occur were the Commission to eliminate the freeze. Implementation of the freeze extension will ease the administrative burden of regulatory compliance for LECs, including small incumbent LECs. The freeze has eliminated the need for all incumbent LECs, including incumbent LECs with 1500 employees or fewer, to complete certain annual studies formerly required by the Commission's rules. The effect of the freeze extension is to reduce a regulatory compliance burden for small incumbent LECs, by abating the aforementioned separations studies and providing these carriers with greater regulatory certainty.

37. Accordingly, based on our application of the two statutorily mandated criteria to the new extension of the freeze adopted in this Order, which essentially maintains the status quo, we certify that the rules and/or policy changes adopted in this Order will not have a significant economic impact on a substantial number of small entities.

38. The Commission will send a copy of this document, including a copy of this Final Regulatory Flexibility Certification, in a report to Congress pursuant to the Congressional Review Act. In addition, this document and final certification will be sent to the Chief Counsel for Advocacy of the SBA, and will be published in the Federal Register .

39. Contact Person. For further information regarding this proceeding, please contact Marv Sacks, Pricing Policy Division, Wireline Competition Bureau, 45 L Street NE, Washington, DC 20554, (202) 418-2017, or marvin.sacks@fcc.gov.

40. Effective Date. We find good cause to make the extension of the separations freeze effective immediately upon publication of a summary of this Report and Order in the Federal Register . The current freeze is scheduled to expire on December 31, 2024, and making the freeze extension effective immediately upon publication is necessary to ensure that the separations freeze remains in place without interruption. Further, as the rules we adopt in this Report and Order maintain the current status quo for all affected parties, we find that ensuring the separations freeze remains uninterrupted outweighs any benefit that might accrue from an effective date later than the date of publication in the Federal Register .

41. Accordingly, it is ordered that, pursuant to the authority contained in sections 1, 4(i) and (j), 201, 205, 220, 221(c), 254, 303(r), 403, and 410 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i) and (j), 201, 205, 220, 221(c), 254, 303(r), 403, 410, and part 36 of the Commission's rules, 47 CFR part 36, this Report and Order is adopted .

42. It is further ordered that, pursuant to the authority contained in sections 1, 4(i) and (j), 201, 205, 220, 221(c), 254, 303(r), 403, and 410 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i) and (j), 201, 205, 220, 221(c), 254, 303(r), 403, 410, and Part 36 of the Commission's rules, 47 CFR part 36, is amended .

43. It is further ordered that, pursuant to the authority contained in sections 1, 4(i) and (j), 201, 205, 220, 221(c), 254, 303(r), 403, and 410 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i) and (j), 201, 205, 220, 221(c), 254, 303(r), 403, 410, the amendments to 47 CFR part 36 shall be effective on the date of publication of a summary of this Report and Order in the Federal Register .

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

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

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 36 as follows:

The Commission submitted revised information collection requirements for review and approval by OMB, as required by the Paperwork Reduction Act (PRA) of 1995, on April 10, 2024. OMB approved the revised information collection requirements on October 16, 2024. The information collection requirements are contained in the Commission's Connect America Fund Order, FCC 23-87, published at 89 FR 25147, April 10, 2024. The OMB Control Number is 3060-0233. The Commission publishes this document as an announcement of the effective date of the rules published on April 10, 2024. If you have any comments on the burden estimates listed in the following, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Nicole Ongele, Federal Communications Commission, 45 L Street NE, Washington, DC 20554. Please include the OMB Control Number, 3060-0233, in your correspondence. The Commission will also accept your comments via email at PRA@fcc.gov . 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 and Governmental Affairs Bureau at (202) 418-0530 (voice).

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the Commission is notifying the public that it received OMB approval on October 16, 2024, for the amendments to 47 CFR 36.4,54.903 and the removal and reservation of 47 CFR 54.1306 published at 89 FR 25147, April 10, 2024.

Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.

No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060-0233.

The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, and 44 U.S.C. 3507.

The total annual reporting burdens and costs for the respondents are as follows:

OMB Control Number: 3060-0233.

OMB Approval Date: October 16, 2024.

OMB Expiration Date: October 31, 2027.

Title: Rate-of-Return Carrier Universal Service Reporting Requirements; Waiver of Local Exchange Carrier Study Area Boundary Changes.

Form Number: FCC Form 507, FCC Form 508 and FCC Form 509.

Type of Review: Revision of a currently approved collection.

Respondents: Business or other for-profit entities, not-for-profit institutions.

Number of Respondents and Responses: 1,098 respondents; 3,627 responses.

Estimated Time per Response: 1 hours-22 hours.

Frequency of Response: Annual reporting requirements.

Obligation to Respond: Required to obtain or retain benefits. Statutory authority for this information collection is contained in 47 U.S.C. 151-154, 214, 218-220, 221(c), 254, and 303(r).

Total Annual Burden: 34,404 hours.

Total Annual Cost(s): No Cost.

Needs and Uses: In order to determine which carriers are entitled to universal service support, all rate-of-return regulated (rate-of-return) incumbent local exchange carriers (LECs) must provide the National Exchange Carrier Association (NECA) with the loop cost and loop count data required by section 54.1305 for each of its study areas and, if applicable, for each wire center as that term is defined in 47 CFR part 54. See 47 CFR 54.1305, 54.5. The loop cost and loop count information is to be filed annually with NECA by July 31st of each year. See 47 CFR 54.1305. Pursuant to section 54.1307, the information filed on July 31st of each year will be used to calculate universal service support for each study area and is filed by NECA with the Commission on October 1 of each year. See 47 CFR 54.1307. An incumbent LEC is defined as a carrier that meets the definition of “incumbent local exchange carrier” in section 51.5 of the Commission's rules. See 47 CFR 51.5.

In March 2016, the Commission adopted the Rate-of-Return Reform Order to continue modernizing the universal service support mechanisms for rate-of-return carriers. Connect America Fund et al., Report and Order et al., 31 FCC Rcd 3087 (2016) (Rate-of-Return Reform Order). The Rate-of-Return Reform Order replaced the Interstate Common Line Support (ICLS) mechanism with the Connect America Fund—Broadband Loop Support (CAF-BLS) mechanism. Id. at 3117-57, paras. 80-187. While ICLS supported only lines used to provide traditional voice service (including voice service bundled with broadband service), CAF-BLS also supports consumer broadband-only loops. Id. at 3157-62, paras. 188-204. For the purposes of calculating and monitoring CAF-BLS, rate-of-return carriers that receive CAF-BLS must file common line and consumer broadband-only loop counts on FCC Form 507, forecasted common line and consumer broadband-only loop costs and revenues on FCC Form 508, and actual common line and consumer broadband-only loop costs and revenues on FCC Form 509. See 47 CFR 54.903(a).

In December 2018, the Commission adopted the December 2018 Rate-of-Return Reform Order to require rate-of-return carriers that receive Alternative Connect American Model (A-CAM) or Alaska Plan support to file line count data on FCC Form 507 as a condition of high-cost support. Connect America Fund et al., WC Docket No. 10-90 et al., Report and Order, Further Notice of Proposed Rulemaking and Order on Reconsideration, 33 FCC Rcd 11893 (2018) (2018 Rate-of-Return Reform Order). Historically, all rate-of-return carriers that received CAF-BLS or, prior to that, ICLS, were required to file line count data on FCC Form 507 as a condition of that support but Rate-of-return carriers that had elected to receive A-CAM I, A-CAM II, or Alaska Plan instead were not. Id. at 11937, para. 148. In order to restore a data set that the Commission relied on to evaluate the effectiveness of its high-cost universal service programs, the Commission revised its rules in that Order to require all rate-of-return carriers to file that data. See id. at 11937, para. 51. While carriers receiving CAF-BLS must file the line count data on March 31 for line counts as of the prior December 31, the A-CAM I, A-CAM II, and Alaska Plan carriers will be required to file on July 1 of each year to coincide with other existing requirements in OMB Control No. 3060-0986. 47 CFR 54.903(a)(1), 54.313(f)(5).

On October 20, 2023, the Commission made changes to rate-of-return reporting rules by eliminating optional unseparated loop cost data quarterly updates. Connect America Fund et al., WC Docket No. 10-90 et al. WT Docket No. 10-208, Notice of Proposed Rulemaking and Report and Order, FCC 23-87 at 79-80, paras. 181-82 (Oct. 20, 2023). In addition, the Commission amended section 36.4 of the Commission's rules, 47 CFR 36.4, to require local exchange carriers seeking a change in study area boundaries to submit a petition for waiver of these boundary changes notwithstanding any prior exemptions from such waiver requests including, but not limited to, when a company is combining previously unserved territory with one of its study areas or a holding company is consolidating existing study areas within the same state. See id. at 176-180, paras. 77-79.

In a Notice of Proposed Rulemaking (NPRM), published in the Federal Register on July 31, 2024, DHS proposed to amend certain Homeland Security Acquisition Regulation (HSAR) provisions prohibiting the award of certain Federal contracts to institutions of higher education that prohibit Reserve Officer Training Corps units or military recruiting on campus. 1

As explained in the NPRM, on December 4, 2003, DHS published an interim final rule to establish the HSAR. 2 On May 2, 2006, DHS published a final rule, which adopted the interim rule with some changes in response to public comment (HSAR final rule). 3 The HSAR final rule finalized, among other provisions, HSAR clause 3052.209-71, Reserve Officer Training Corps and Military Recruiting on Campus (48 CFR 3052.209-71). This prohibited the award of certain Federal contracts to institutions of higher education that prohibit Reserve Officer Training Corps units or military recruiting on campus.

HSAR clause 3052.209-71 required certain contractors to represent at time of contract award that it did not have and agree that during performance of a contract to not adopt, any policy or practice that prohibits or prevents the maintenance, establishment, or operation of a Senior Reserve Officer Training Corps (ROTC) unit at the institution; students at that institution from enrolling in a unit of the Senior ROTC at another institution of higher education; the Secretary of a military department or Secretary of Homeland Security from gaining access to campuses, or students on campuses, for military recruiting purposes; or access by military recruiters, for the purposes of military recruiting, to certain information pertaining to students enrolled at the institution. The clause also listed the two statutory exceptions to the prohibition concerning the award of a contract found in 10 U.S.C. 983(c).

On October 23, 2020, the Department of Defense (DoD), the General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) jointly issued a final rule entitled Federal Acquisition Regulation (FAR) Reserve Officer Training Corps and Military Recruiting on Campus (“FAR final rule”). 4 The FAR final rule, among other amendments, codified for all affected Federal agencies a requirement to include, where applicable, a clause that prohibits the award of certain Federal contracts to institutions of higher education that prohibit Reserve Officer Training Corps units or military recruiting on campus. 5

On December 8, 2020, DHS issued HSAR Class Deviation 21-02, Reserve Officer Training Corps and Military Recruiting on Campus. 6 The deviation explained that the FAR final rule “effective November 23, 2020, added FAR 9.110 that provides the policy and procedures for complying with the 10 U.S.C. 983 prohibition, including FAR clause 52.209-14.” 7 The deviation then directed DHS contracting officers to follow the FAR when complying with the requirements of 10 U.S.C. 983 and suspended use of HSAR 3009.470 and HSAR clause 3052.209-71. As a result of the FAR revision and HSAR Class Deviation 21-02, HSAR clause 3052.209-71 has not been used to comply with 10 U.S.C. 983 since 2020.

Interested parties were given until September 30, 2024, to comment on the NPRM. DHS received one public comment that was not substantive. The one public comment received provided support for the rule.

As explained previously, since 2020 DHS has complied with the requirements of 10 U.S.C. 983 by following the regulatory provisions of the FAR final rule; not 48 CFR 3052.209-71 and 48 CFR 3009.470. This final rule amends the HSAR to remove and reserve 48 CFR 3052.209-71 and subpart 3009.4 of 48 CFR part 3009.

Executive Orders 12866 (Regulatory Planning and Review), as amended by Executive Order 14094 (Modernizing Regulatory Review), and 13563 (Improving Regulation and Regulatory Review) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility.

The Office of Management and Budget (OMB) has not designated this rule a significant regulatory action, under section 3(f) of Executive Order 12866, as amended by Executive Order 14094. Accordingly, OMB has not reviewed this regulatory action.

This final rule codifies the requirements set forth in the HSAR Class Deviation 21-02, Reserve Officer Training Corps and Military Recruiting on Campus, that directs DHS contracting officers to follow the FAR when complying with the requirements of 10 U.S.C. 983 and suspends use of HSAR 3009.470 and HSAR clause 3052.209-71. As stated previously, because of the amendments made in the FAR final rule that standardized compliance with 10 U.S.C. 983 for all affected Federal agencies, DHS determined that HSAR clause 3052.209-71 and subpart 3009.4 are not needed to comply with the requirements of 10 U.S.C. 983. Therefore, this final rule amends the HSAR to remove and reserve this clause and its corresponding policy.

There are no quantified costs or cost savings to this rule as it simply rescinds HSAR requirements that DoD, GSA and NASA have already incorporated in the FAR. DHS believes there will be efficiency and streamlining benefits from this rule as it will remove agency specific provisions from the HSAR.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121, (Mar. 29, 1996), requires Federal agencies to consider the potential impact of regulations on small businesses, small governmental jurisdictions, and small organizations during the development of their rules. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, or governmental jurisdictions with populations of less than 50,000. This final rule rescinds HSAR clause 3052.209-71 and does not impose new requirements on small entities. As such, DHS certifies this final rule will not result in a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.

The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501-3521).

Section 102 of the National Environmental Policy Act of 1969 (NEPA), Public Law 91-190, 83 Stat. 852 (Jan. 1, 1970) (42 U.S.C. 4321 et seq. ), as amended, requires Federal agencies to evaluate the impacts of a major Federal actions that may significantly affect the human environment, consider alternatives to the proposed action, provide public notice and opportunity to comment, and properly document its analysis. DHS and its agency components analyzed the actions in this rule to determine whether NEPA applies to them and, if so, what level of documentation and analysis is required.

DHS Directive 023-01, Rev. 01 and DHS Instruction Manual 023-01-001-01, Rev. 01 (Instruction Manual) establish the policies and procedures DHS and its component agencies use to comply with NEPA and the Council on Environmental Quality regulations for implementing NEPA codified in 40 CFR parts 1500-1508. The CEQ regulations allow Federal agencies to establish, in their implementing procedures, with CEQ review and concurrence, categories of actions (“categorical exclusions”) that experience has shown do not, individually or in the aggregate, have a significant effect on the human environment and, therefore, do not require preparation of an environmental assessment or environmental impact statement. 40 CFR 1501.4, 1507.3(e)(2)(ii). Appendix A of the Instruction Manual lists the DHS categorical exclusions.

Under DHS NEPA implementing procedures, for an action to be categorically excluded, it must satisfy each of the following three conditions: (1) the entire action clearly fits within one or more categorical exclusions; (2) the action is not a piece of a larger action; and (3) no extraordinary circumstances exist that create the potential for a significant environmental effect.

This final rule amends the HSAR to remove and reserve HSAR clause 3052.209-71 and subpart 3009.4. As stated previously, this HSAR clause and its corresponding policy that this rule removes are now obsolete given that a FAR clause has been implemented to create a single standard for all agencies subject to 10 U.S.C. 983 to comply with the statutory requirements.

DHS is not aware of any significant impact on the environment, or any change in environmental effect that will result from this final rule. DHS finds promulgation of the rule clearly fits within categorical exclusion A3, established in the Department's NEPA implementing procedures as removing and reserving HSAR clause 3052.209-71 and subpart 3009.4 is strictly administrative in nature.

This final rule is a standalone rule and is not part of any larger action. This final rule will not result in any major Federal action that will significantly affect the quality of the human environment. Furthermore, DHS has determined that no extraordinary circumstances exist that will create the potential for significant environmental effects. Therefore, this final rule is categorically excluded from further NEPA review and documentation.

For the reasons set forth in the preamble, DHS amends 48 CFR parts 3009 and 3052 as follows:

In a Notice of Proposed Rulemaking (NPRM), published in the Federal Register on July 24, 2024, DHS proposed to amend the Homeland Security Acquisition Regulation (HSAR) provisions that relate to the Kissell Amendment, a section of the American Recovery and Reinvestment Act of 2009 (Recovery Act), that deals with the acquisition of certain clothing, canvas or textile products and natural and synthetic fabrics. 1

As explained in the NPRM, the Recovery Act was enacted in 2009. 2 Section 604 of the Recovery Act is also known as the Kissell Amendment. 3 The Kissell Amendment requires, with limited exceptions, that funds appropriated or otherwise available to DHS may not be used for the procurement of certain textiles, clothing and footwear, if that item is directly related to the national security interests of the United States, unless the item is grown, reprocessed, reused, or produced in the United States. 4 One of the exceptions is a De Minimis Exception, which allows the Secretary of Homeland Security to accept delivery of the aforementioned textiles, clothing and footwear “that contain non-compliant fibers if the total value of non-compliant fibers contained in the end item does not exceed 10 percent of the total purchase price of the end item.”  5

The Kissel Amendment further requires DHS to apply it in a manner consistent with United States obligations under international agreements. 6 As DHS has explained in prior notices, this includes free trade agreements and the World Trade Organization Agreement on Government Procurement. 7 These requirements apply with respect to contracts entered into by DHS on or after August 16, 2009. 8

As discussed in the NPRM, in 2009, DHS published an interim rule (“2009 Interim Rule”) amending the Homeland Security Acquisition Regulation (HSAR) at 48 CFR part 3025, Foreign Acquisitions, and part 3052, Solicitation Provisions and Contract Clauses, incorporating the Kissell Amendment requirements. 9 In 2010, DHS published a final rule (“2010 Final Rule”) adopting the 2009 Interim Rule as final without change. 10 The 2009 Interim Rule made amendments to the HSAR “to add solicitation provisions, contract clauses and related policy statements implementing these requirements and exceptions for certain DHS contracts, option exercises and orders.”  11

The regulations also provided an exception for “incidental amounts of cotton, other natural fibers, or wool incorporated in an end product, for which the estimated value of the cotton, other natural fibers, or wool is not more than 10 percent of the total price of the end product.”  12

On March 5, 2013, DHS issued a deviation regarding the applicability of the Kissell Amendment (Deviation 13-01). 13 Under Deviation 13-01, DHS deviates from the language of 48 CFR 3025.7000 that restricted application of certain Kissell provisions to those actions with funds appropriated or otherwise provided on or before February 17, 2009. 14

In addition, on March 14, 2013, DHS issued an amendment to Deviation 13-01 (“Deviation Amendment 1”). 15 Under Deviation Amendment 1, the De Minimis Exception described above was to be read as applying to “incidental amounts of non-compliant fibers if the total value of non-compliant fibers contained in the end item does not exceed 10 percent of the total purchase price of the end item . . .”. 16 Deviation 13-01 and Deviation Amendment 1 were both effective immediately at the time of their publication in 2013 and are still in effect. 17

Interested parties were given until September 23, 2024, to comment on the NPRM. DHS received two public comments, neither of which were substantive. DHS received one comment that was outside the scope of the rule, and another comment that supported the rule. This final rule amends the HSAR to better clarify how DHS complies with the Kissell Amendment including codifying certain requirements from Deviation 13-01 and Deviation Amendment 1.

Consistent with Deviation 13-01 this final rule, defines the term “end item” to mean “supplies delivered under a line item of a contract.” See 48 CFR 3025.7001(c). As “end item” is the term used in the Kissell Amendment, DHS believes that defining and using the statutory term “end item” in the HSAR provisions applicable to the Kissell Amendment will also provide clarity.

This final rule also amends 48 CFR 3025.7000 to explain that this provision applies to the Kissell Amendment, the subject of this subpart; as well as the description of the type of funds to which the Kissell Amendment applies consistent with current practice and Deviation 13-01. As explained in the NPRM, DHS issued Deviation 13-01 on March 5, 2013, and since then the Kissell Amendment has applied to “contracts, exercising of an option and orders entered into on or after August 16, 2009.”  18

Consistent with Deviation 13-01 and current practice this final rule clarifies that the Kissell restrictions apply to all contracts, options and orders entered into on or after August 16, 2009. See 48 CFR 3025.7002-1. In addition, this final rule updates the provisions impacting the De Minimis Exception consistent with Deviation Amendment 1 to use the statutory term `end item' where appropriate. See, e.g., 48 CFR 3025.7002-2 and 3052.225-70(d)(2).

Further, this final rule includes the Kissell amendment under the applicable legal authorities. It also fixes a typographical error to correctly reference 48 CFR 3025.7002-3 when mentioning the regulatory provision for specific application of trade agreements. See 48 CFR 3025.7002-2(h).

Accordingly, DHS adopts the NPRM as final, amending 48 CFR part 3025, Foreign Acquisitions, and 48 CFR part 3052, Solicitation Provisions and Contract Clauses.

Executive Order 12866 (Regulatory Planning and Review), as amended by Executive Order 14094 (Modernizing Regulatory Review), and Executive Order 13563 (Improving Regulation and Regulatory Review) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.

The Office of Management and Budget (OMB) has not designated this rule a significant regulatory action under section 3(f) of Executive Order 12866, as amended by Executive Order 14094. Accordingly, OMB has not reviewed this regulatory action.

This final rule codifies the requirements as set forth in the Deviation 13-01 and Deviation Amendment 1, to provide clarity and consistency, and align the HSAR with existing DHS practice. DHS is not newly implementing the Kissell Amendment, but is, as described above, amending the existing regulation to clarify the type of funds to which the Kissell Amendment, including the De Minimis Exception, applies.

The benefits and costs of a regulation are generally measured against a no-action baseline, which is a reasonable forecast of the way the world would look absent the regulatory action being assessed. 19 This final rule will not result in new costs since DHS has implemented the changes through Deviation 13-01 and Deviation Amendment 1, both issued in 2013. The changes to the HSAR will promote clarity and fuller understanding of the Kissell Amendment regulatory requirements by agency contracting officers as well as potential DHS vendors. This additional clarity will be a benefit to industry as improved contracting officer understanding of the regulatory requirements helps ensure that DHS applies standards similarly across contracting actions, making it easier for industry to comply with DHS requirements. A summary of the costs and benefits of the rule is shown below in Exhibit 1.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121, (Mar. 29, 1996), requires Federal agencies to consider the potential impact of regulations on small businesses, small governmental jurisdictions, and small organizations during the development of their rules. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, or governmental jurisdictions with populations of less than 50,000. This final rule will provide clarity and consistency between the HSAR and existing DHS practice as set forth in Deviation 13-01 and Deviation Amendment 1; and does not directly mandate any actions or requirements that will result in burdens for small entities. Therefore, DHS certifies this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.

The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501-35210).

Section 102 of the National Environmental Policy Act of 1969 (NEPA), Public Law 91-190, 83 Stat. 852 (Jan. 1, 1970) (42 U.S.C. 4321 et seq. ), as amended, requires Federal agencies to evaluate the impacts of major Federal actions that may significantly affect the human environment, consider alternatives actions provide public notice and opportunity to comment, and properly document its analysis. DHS and its agency components analyzed the actions in this rule to determine whether NEPA applies to them and, if so, what level of documentation and analysis is required.

DHS Directive 023-01, Rev. 01 and DHS Instruction Manual 023-01-001-01, Rev. 01 (Instruction Manual) establish the policies and procedures DHS and its component agencies use to comply with NEPA and the Council on Environmental Quality regulations for implementing NEPA codified in 40 CFR parts 1500-1508. The CEQ regulations allow Federal agencies to establish, in their implementing procedures, with CEQ review and concurrence, categories of actions (“categorical exclusions”) that experience has shown do not, individually or in the aggregate, have a significant effect on the human environment and, therefore, do not require preparation of an environmental assessment or environmental impact statement. 40 CFR 1501.4, 1507.3(e)(2)(ii). Appendix A of the Instruction Manual lists the DHS categorical exclusions.

Under DHS NEPA implementing procedures, for an action to be categorically excluded, it must satisfy each of the following three conditions: (1) the entire action clearly fits within one or more categorical exclusions; (2) the action is not a piece of a larger action; and (3) no extraordinary circumstances exist that create the potential for a significant environmental effect.

This final rule amends the HSAR to better clarify how DHS complies with the Kissell Amendment. This includes codifying requirements as set forth in Deviation 13-01 and Deviation Amendment 1 that are currently in effect.

DHS is not aware of any significant impact on the environment, or any change in environmental effect that will result from this final rule. DHS finds promulgation of the rule clearly fits within categorical exclusion A3, established in the Department's NEPA implementing procedures.

This final rule is a standalone rule and is not part of any larger action, and will not result in any major Federal action that will significantly affect the quality of the human environment. Furthermore, DHS has determined that no extraordinary circumstances exist that will create the potential for significant environmental effects. Therefore, this final rule is categorically excluded from further NEPA review and documentation.

Accordingly, for the reasons set forth in the preamble, DHS amends 48 CFR parts 3025 and 3052 as follows: