The Direct-MFH Loan and Grant program is authorized under sections 514, 515, 516 of title V of the Housing Act of 1949, as amended; 42 U.S.C. 1471 et seq.; and implemented under 7 CFR part 3560. Section 510(k) of title V the Housing Act of 1949 (42 U.S.C. 1480(k)), as amended, authorizes the Secretary of Agriculture to promulgate rules and regulations as deemed necessary to carry out the purpose of that title.

The RHS, an agency of the USDA, offers a variety of programs to build or improve housing and essential community facilities in rural areas. RHS offers loans, grants, and loan guarantees for Single- and Multifamily housing, childcare centers, fire and police stations, hospitals, libraries, nursing homes, schools, first responder vehicles and equipment, and housing for farm laborers. RHS also provides technical assistance loans and grants in partnership with non-profit organizations, Indian Tribes, State and Federal Government agencies, and local communities.

Title V of the Housing Act of 1949 (Act) authorized the USDA to make housing loans to farmers to enable them to provide habitable dwellings for themselves or their tenants, lessees, sharecroppers, and laborers. The USDA then expanded opportunities in rural areas, making housing loans and grants to rural residents through the Single-Family Housing (SFH) and Multifamily Housing (MFH) Programs.

The RHS operates the Direct MFH Loan and Grant Programs. The direct loan program provides loans to eligible borrowers unable to get financing through traditional lenders. Multifamily direct loans feature terms and conditions that support the development or preservation of affordable rural rental housing for low-income, elderly, or disabled people. Loan funds can be used for all construction hard costs and land-related costs, including land acquisition and development.

The RHS published a proposed rule in the Federal Register on March 29, 2024 [89 FR 22094], to change the process by which credit reports are obtained to determine credit worthiness, eligibility, and feasibility for applicants and borrowers for MFH funding, transfers, and servicing actions. A 60-day comment period was provided for the proposed rule, which closed on May 28, 2024. The Agency received comments from two (2) respondents. Neither comment is applicable to the specific contents of the proposed rule. Of the comments received, one respondent manages a USDA-RD property and provided concerns for tenants providing their own credit report to live in the complex, which is not what this rule will allow, and one respondent's comment was made anonymously about leasing and selling public land to the government, which is not applicable to the subject matter of this rule. No changes were made in this final rule as a result of public comments.

RHS regulation 7 CFR 3560.56(d)(5) provides that for initial loan applications, eligibility and feasibility of a housing proposal will be determined based on, amongst other requirements, an analysis of current credit reports. Currently, the agency collects a credit report fee from applicants during the application process and agency staff obtains the required credit report through a contract with a credit reporting agency. RHS has relied on various internal guidance documents to staff to provide information on this credit report process. By not having the credit report process clearly codified, the Agency makes the process unnecessarily complicated for the applicant and Agency staff. When the Multifamily Housing Program realigned all staff members to the National Office level, applicants were required to submit the credit report fee electronically to the Agency's Business Center Servicing Office using a payment link. The process for creating the payment link is cumbersome. Agency staff must determine and notify the applicant of the credit report fee applicable for the applicant's particular request. Agency staff will request the Servicing Office to create a staged payment link for the fee through a SharePoint portal. Once the payment link is created, the Servicing Office notifies the requesting Agency staff and provides the payment link. Agency staff, in turn, notifies the applicant of the payment link and the applicant must process the payment before the link expires in 30 days. After the applicant's payment processes successfully, the Agency orders the credit report from a contracted bureau.

This final rule will amend 7 CFR part 3560 to require that in lieu of applicants and borrowers submitting credit report fees, the Agency will require applicants and borrowers to provide the credit report(s). In accordance with 18 U.S.C. 1001, applicants that submit false, fictitious, or fraudulent materials shall be fined or imprisoned not more than 5 years.

It is the Agency's expectation that this regulation update for obtaining credit reports will align the Agency with current industry practices and create an efficiency for applicants and borrowers by streamlining the application process.

The Agency will make the following revisions as published in the proposed rule. No changes were made in this final rule as a result of public comments.

(1) Add the definition of Current Comprehensive Credit Report to 7 CFR 3560.11.

(2) Update 7 CFR 3560.56(d)(5) to include the requirements of a valid credit report which must address both the entity and the actual individual principals, partners, members, etc., within the applicant entity, including any sub-entities who are responsible for controlling the ownership and operations of the entity.

(3) Update 7 CFR 3560.405 to include the requirement for a credit report in cases of change to the borrower's organization structure or entity's controlling interest.

(4) Update 7 CFR 3560.406 to include the requirement for a credit report for approval of transfers and sales.

(5) Establish a new subpart R within 7 CFR part 3560 to provide detailed requirements of the credit reporting process.

In addition, this final rule will include conforming changes to rescind 7 CFR part 1910, subparts B and C, and 7 CFR 1955.118, which are outdated.

These loans and grants are subject to the provisions of Executive Order 12372, which requires intergovernmental consultation with State and local officials to foster the intergovernmental partnership and strengthen federalism by relying on State and local processes for the coordination and review of proposed Federal financial assistance and direct Federal development.

Applicants for the Direct Multifamily Housing Loan and Grant program are required to contact their State's Single Point of Contact (SPOC) to submit their Statement of Activities and find out more information on how to comply with the State's process under Executive Order 12372. To locate a SPOC for your State, the Office of Management and Budget (OMB) has an official SPOC list on its website https://www.whitehouse.gov/omb/office-federal-financial-management/spoc-list/. For those States that have a home page for their designated SPCO, a direct link has been provided by clicking on the State name. SPOC information is also available in any RD Agency office or on the RD Agency's website.

States that are not listed on the OMB website have chosen not to participate in the intergovernmental review process, and therefore, do not have a SPOC. If you are located within a State that does not have a SPOC, you may send application materials directly to the Federal RD awarding agency. RHS conducts intergovernmental consultations for each loan in accordance with 2 CFR part 415, subpart C.

This final rule has been determined to be not significant and, therefore, was not reviewed by the Office of Management and Budget (OMB) under Executive Order 12866.

This final rule has been reviewed under Executive Order 12988. In accordance with this rulemaking: (1) unless otherwise specifically provided, all State and local laws that conflict with this rulemaking will be preempted; (2) no retroactive effect will be given to this rulemaking except as specifically prescribed in the rule; and (3) administrative proceedings of the National Appeals Division of the Department of Agriculture (7 CFR part 11) must be exhausted before bringing suit in court that challenges action taken under this rulemaking.

The policies contained in this final rule do not have any 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. This final rule does not impose substantial direct compliance costs on State and local governments; therefore, consultation with States is not required.

This final rule has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. Executive Order 13175 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. Consultation is also required for any regulation that preempts Tribal law or that imposes substantial direct compliance costs on Indian Tribal governments and that is not required by statute.

The Agency has determined that this final rule does not, to our knowledge, have Tribal implications that require formal Tribal consultation under Executive Order 13175. If a Tribe requests consultation, the RHS will work with the Office of Tribal Relations to ensure meaningful consultation is provided where changes, additions and modifications identified herein are not expressly mandated by Congress.

Section 270 of the Administrative Pay-As-You-Go-Act of 2023 (Pub. L. 118-5, div. B, title III, 137 Stat 31) amended 5 U.S.C. 801(a)(2)(A) to require U.S. Government Accountability Office (GAO) to assess agency compliance with the Act, which establishes requirements for administrative actions that affect direct spending, in GAO's major rule reports.

The Act does not apply to this rule because it does not increase direct spending.

In accordance with the National Environmental Policy Act of 1969, Public Law 91-190, this final rule has been reviewed in accordance with 7 CFR part 1970 (“Environmental Policies and Procedures”). The Agency has determined that i) this action meets the criteria established in 7 CFR 1970.53(f); ii) no extraordinary circumstances exist; and iii) the action is not “connected” to other actions with potentially significant impacts, is not considered a “cumulative action” and is not precluded by 40 CFR 1506.1. Therefore, the Agency has determined that the action does not have a significant effect on the human environment, and therefore neither an Environmental Assessment nor an Environmental Impact Statement is required.

This final rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act (5 U.S.C. 601-612). The undersigned has determined and certified by signature on this document that this final rule will not have a significant economic impact on a substantial number of small entities since this rulemaking action does not involve a new or expanded program nor does it require any more action on the part of a small business than required of a large entity.

Title II of the UMRA, Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments and on the private sector. Under section 202 of the UMRA, Federal agencies generally must prepare a written statement, including cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to state, local, or tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, section 205 of the UMRA generally requires a Federal agency to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule.

This final rule contains no Federal mandates (under the regulatory provisions of title II of the UMRA) for State, local, and Tribal governments or for the private sector. Therefore, this final rule is not subject to the requirements of sections 202 and 205 of the UMRA.

This final rule contains no new reporting or recordkeeping burdens under OMB control number 0575-0189 that would require approval under the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35).

Rural Development is committed to the E-Government Act, which requires Government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible and to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

RD has reviewed this final rule in accordance with USDA Regulation 4300-4, Civil Rights Impact Analysis, to identify any major civil rights impacts the final rule might have on program participants on the basis of age, race, color, national origin, sex, or disability. After review and analysis of the final rule and available data, it has been determined that implementation of the rulemaking will not adversely or disproportionately impact very low, low-, and moderate-income populations, minority populations, women, Indian tribes, or persons with disability by virtue of their race, color, national origin, sex, age, disability, or marital or familial status. No major civil rights impact is likely to result from this final rule.

The program affected by this regulation is listed in the Assistance Listing Catalog (formerly Catalog of Federal Domestic Assistance) under numbers 10.415-Rural Rental Housing Loans and 10.405-Farm Labor Housing Loans and Grants.

In accordance with Federal civil rights laws and U.S. Department of Agriculture (USDA) civil rights regulations and policies, the USDA, its Mission Areas, agencies, staff offices, employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.

Program information may be made available in languages other than English. Persons with disabilities who require alternative means of communication to obtain program information ( e.g., Braille, large print, audiotape, American Sign Language) should contact the responsible Mission Area, agency, staff office, or the 711 Federal Relay Service.

To file a program discrimination complaint, a complainant should complete a Form AD-3027, USDA Program Discrimination Complaint Form, which can be obtained online at https://www.usda.gov/sites/default/files/documents/ad-3027.pdf, from any USDA office, by calling (866) 632-9992, or by writing a letter addressed to USDA. The letter must contain the complainant's name, address, telephone number, and a written description of the alleged discriminatory action in sufficient detail to inform the Assistant Secretary for Civil Rights (ASCR) about the nature and date of an alleged civil rights violation.

The completed AD-3027 form or letter must be submitted to USDA by:

USDA is an equal opportunity provider, employer, and lender.

It is USDA's intention that the provisions of this rule shall operate independently of each other. In the event that this rule or any portion of this rule is ultimately declared invalid or stayed as to a particular provision, it is USDA's intent that the rule nonetheless be severable and remain valid with respect to those provisions not affected by a declaration of invalidity or stayed. USDA concludes it would separately adopt all of the provisions contained in this final rule.

For the reasons set forth in the preamble, the Rural Housing Service amends 7 CFR parts 1910, 1955, and 3560 as follows:

The Animal and Plant Health Inspection Service (APHIS) of the United States Department of Agriculture (USDA or the Department) administers regulations at 9 CFR part 53 (referred to below as the regulations) that provide for the payment of indemnity to owners of animals that are required to be destroyed because of foot-and-mouth disease, pleuropneumonia, Newcastle disease, highly pathogenic avian influenza (HPAI), infectious salmon anemia, spring viremia of carp, or any other communicable disease of livestock or poultry that, in the opinion of the Secretary of Agriculture, constitutes an emergency and threatens the U.S. livestock or poultry population. Payment for animals destroyed is based on the fair market value of the animals at the time of their destruction.

Section 53.2 of the regulations authorizes the APHIS Administrator to cooperate with a State in the control and eradication of disease, as that term is defined in § 53.1. Section 53.2(b) allows for payments to cover the costs for purchase, destruction, and disposition of animals required to be destroyed because of being infected with or exposed to such disease. Section 53.10 of the regulations provides conditions under which indemnity claims are not allowed, whereas § 53.11 provides conditions under which payment will be made on indemnity claims resulting from HPAI outbreaks.

HPAI is an extremely infectious and fatal form of avian influenza in poultry. An HPAI outbreak can have significant consequences for the poultry industry, wildlife, and producers' livelihoods, as well as significant impacts on international trade in poultry and poultry products. Certain strains of avian influenza have the potential to affect humans. An HPAI outbreak in poultry in the United States is declared when the first case in domestic poultry meets the case definition of HPAI as defined in USDA APHIS' National List of Reportable Animal Diseases (NLRAD) ( https://www.aphis.usda.gov/sites/default/files/avian-influenza-case-definition.pdf ). Stakeholders are notified of HPAI outbreaks through several routes of information; for example, online announcements are posted on the APHIS website at: https://www.aphis.usda.gov/news. Additionally, pursuant to the World Organization for Animal Health (WOAH) standards, 1 at the onset of an HPAI outbreak in the United States, national level outbreak information is posted on the World Animal Health Information System. 2 The HPAI outbreak applies to the entire country, and to the State in which the initial premises that tested positive is located. The outbreak ends in a specific State when the State regains freedom from HPAI pursuant to the WOAH standards. WOAH does not grant official recognition of freedom from HPAI in poultry. Per WOAH standards, the national HPAI outbreak ends when the United States declares freedom from HPAI in poultry by providing evidence demonstrating that the requirements for the disease status have been met in accordance with WOAH standards. Specifically, an outbreak ends when the country provides scientific data that explains the epidemiology of avian influenza in the region concerned and also demonstrates how all the risk factors are managed. This includes proof of effective surveillance strategies that mitigate the introduction of HPAI. The United States cannot declare freedom from HPAI in poultry for the entire country if HPAI exists in poultry in any State or territory within the country.

Beginning in December 2014, the U.S. poultry industry experienced a severe outbreak of HPAI, discovered in backyard flocks in the Pacific Northwest, and in two commercial turkey and chicken flocks in California. APHIS issued a final July 2015 report of the 2014-2015 outbreak, ( https://www.aphis.usda.gov/animal_health/emergency_management/downloads/hpai/2015-hpai-final-report.pdf ), regarding surveillance and other response services by APHIS, which has been provided to the public. APHIS determined that from January 2015 to March 2015, the disease spread slowly to multiple States, including Minnesota, Missouri, Arkansas, and Kansas. In June 2015, the last case of HPAI was confirmed in a commercial flock. However, the cost associated with response activities was the most expensive animal health incident recorded in U.S. history. The final cost associated with the 2014-2015 outbreak was nearly $1 billion. The cost obligated for response activities totaled $650 million and indemnity payments totaled $200 million, and an additional $100 million was made available for further preparedness activities.

The impact of the 2014-2015 HPAI outbreak spread beyond financial resources and economic concerns. The outbreak resulted in regulatory revisions to address biosecurity  3 concerns identified during the outbreak. In the July 2015 report, APHIS determined that, amongst other factors, poor biosecurity was responsible for the introduction of HPAI into some commercial poultry facilities. More specifically, APHIS stated in the report that “biosecurity measures must be improved on premises to not only stop HPAI transmission during an outbreak but prevent HPAI introductions into commercial poultry flocks in the future.” Biosecurity basics are aimed at evaluating a premises for possible introduction of disease onto the premises, and taking appropriate mitigations to address these possible sources of introduction and to limit the spread of disease, if introduced. Within the context of HPAI, these include, but are not limited to, the following: (1) Keeping visitors on the premises to a minimum (HPAI can be transmitted by fomites, such as clothing); (2) washing hands before coming in contact with live poultry (HPAI virus can be transmitted by persons coming into physical contact with affected poultry); (3) cleaning/disinfecting tools or equipment before moving them to a new poultry facility (HPAI virus can survive on the surfaces of farm equipment, including tools and means of conveyance); and (4) removing wild bird nesting and harborage, preventing access of wild birds to poultry enclosures, and precluding wild birds from coming in contact with feed used at the premises (as discussed below, wild birds can be a significant pathway for the spread of HPAI). APHIS poultry biosecurity recommendations can be found at: https://www.aphis.usda.gov/livestock-poultry-disease/avian/defend-the-flock.

During the 2014-2015 outbreak, APHIS initially paid full indemnity to bird owners of poultry infected with HPAI, regardless of whether or not the owners had a biosecurity plan in place at their facilities at the time of introduction. In response, APHIS amended the regulations, in an interim rule published in the Federal Register, and effective, on February 9, 2016, (81 FR 6745-6751, Docket No. APHIS-2015-0061), 4 pertaining to conditions for payment of HPAI indemnity claims. We added a requirement for owners and contractors to provide a statement that at the time of detection of HPAI in their facilities, they had in place and were following a poultry biosecurity plan. Section 53.1 defines a “poultry biosecurity plan” as “[a] document utilized by an owner and/or contractor describing the management practices and principles that are used to prevent the introduction and spread of infectious diseases of poultry at a specific facility.” The interim rule also exempted owners and contractors from this requirement if any of the following apply:

• Premises meet the size criteria of the National Poultry Improvement Plan (NPIP)  5 regulations in that they are either:

○ Commercial table-egg laying premises with fewer than 75,000 birds;

○ Egg-type game bird and egg-type waterfowl premises with fewer than 25,000 birds;

• Premises on which fewer than 100,000 broilers are raised annually; or

• Premises on which fewer than 30,000 meat turkeys are raised annually.

We took comment on the interim rule for 60 days, ending April 11, 2016. In response to comments received during the comment period, in a final rule published in the Federal Register on August 15, 2018 (83 FR 40433-40438, Docket No. APHIS-2015-0061), 6 we amended § 53.11 of the regulations to require biosecurity plan audits. Specifically, the final rule required facilities that are subject to the provisions of the 2016 interim rule to have their biosecurity plans audited at least once every 2 years. The final rule also subjected facilities to additional audits, as needed, during this biennial period to satisfy their Official State Agency (OSA). The OSA is the State authority that we recognize as a cooperator in the administration of the requirements of the NPIP. While this auditing mechanism was recommended by the comments on the 2016 interim rule, it is worth noting that the auditing mechanism was also recommended by NPIP at their 2016 biennial conference. 7 As part of the audit, the OSA will, at minimum, evaluate the poultry biosecurity plan itself, which will include an evaluation of the poultry biosecurity plan against 14 biosecurity principles articulated in the NPIP Program Standards policy document, 8 and review the documentation showing that the poultry biosecurity plan is being implemented.

APHIS believed that the provisions of the 2016 HPAI indemnity rule, as amended to include this auditing provision, would be sufficient to reduce spread of the virus in the event of another HPAI outbreak.

Our experience with a subsequent outbreak of HPAI in poultry in 2022-2024 has indicated that the 2016 interim rule and the subsequent 2018 final rule were insufficient to address initial introduction of HPAI into flocks on premises in proximity to an infected premises, or subsequent reintroduction of HPAI into flocks on premises previously infected with HPAI. As of November 2024, the costs associated with the ongoing outbreak have exceeded $1.4 billion, including $1.25 billion in indemnity and compensation payments. Of this, APHIS has spent approximately $227 million on indemnity payments to premises that have been infected multiple times with HPAI. A total of 67 unique commercial poultry premises have been infected at least twice with HPAI during the current outbreak, including 19 premises that have been infected 3 or more times.

While reinfections may occur with even a perfectly implemented biosecurity plan, the data suggest that the current paper-based audit process does not always illustrate how well the premises are practicing biosecurity to prevent HPAI infection or reintroduction. To determine how well a biosecurity plan is being implemented, a visual inspection of the poultry premises is necessary. We discuss this at greater length later in this document.

In April 2022, APHIS issued a HPAI response guidance for the current outbreak. 9 This guidance has assisted with addressing the current outbreak, however gaps in the implementation of biosecurity measures to mitigate the risk of HPAI spread and introduction exist. The current guidance only covers biosecurity audits for premises moving poultry into the buffer zone. This interim rule includes biosecurity requirements for previously infected premises and codifies restocking guidelines for those premises. The current guidance fails to address restocking audits for previously infected premises, that are currently implemented on a State-by-State basis. APHIS has found that some States do not have a restocking policy. Furthermore, epidemiological data shows continued reinfection after the 2022 guidance was implemented. The guidance discourages movement and encourages and requires a higher level of biosecurity within an infected zone, this interim rule provides specifics for the biosecurity audit process and helps ensure that proper biosecurity measures are being implemented within infected zones and by previously infected premises to mitigate future infections.

First, we have learned more about how proximity of poultry premises impacts HPAI spread. 10 During the 2014-2015 HPAI outbreak, States designated “control areas” as the perimeter of at least 10 kilometers (km) beyond the perimeter of the premises infected with HPAI. Control areas consist of an infected zone and a buffer zone. The infected zone is the area that immediately surrounds an infected premises, up to the beginning of the buffer zone. The buffer zone has typically been identified as an uninfected zone situated 3-10 km around an infected premises. The size of control areas is based on several factors including, but not limited to, the infected premises transmission pathways and estimates of transmission risk, poultry movement patterns and concentrations, distribution of susceptible wildlife in proximity, natural terrain, and jurisdictional boundaries. 11 The boundaries of control areas can be modified or redefined when tracing and other epidemiological information becomes available. Premises that are located in the infected zone and buffer zone of a control area are usually notified of this status by the State Animal Health Official (SAHO), although within this interim rule we are making allowance for notification by APHIS instead.

During the current outbreak, it has become increasingly clear that premises within the infected zone and the buffer zone are at a higher risk of becoming infected with HPAI than premises outside of the control area. 12 In June 2023, an epidemiological analysis found that wild bird introductions were the primary means of spread during this current poultry outbreak. To improve the understanding of risk factors associated with HPAI on table egg farms and turkey farms in the United States, case-control studies were conducted identifying risk factors for HPAI and biosecurity challenges. The most significant farm-level risk factor for HPAI on table egg farms was being located within an existing control area. For turkey farms, the farm-level risk factors also included seeing wild waterfowl on the farm, farm location near a wetlands, seeing wild waterfowl or shorebirds on the closest waterbody, and not having a restroom facility available to crews visiting the farm. In addition, having feed or feed ingredients accessible to wild birds was identified as a risk factor. This risk may be heightened by a lack of protocol to clean spilled feed and/or presence of water around the premises where wild birds may congregate; both of these factors can serve as wild bird attractants to a premises. The findings confirm the need for both biosecurity and surveillance on poultry farms near an infected premises, to prevent infection and ensure rapid detection, whether the virus is likely spreading by wild birds or laterally between farms. Because premises in control areas are at a higher risk of being infected with HPAI, adequate biosecurity measures need to be implemented on these premises to prevent the introduction and spread of HPAI from premises to premises within the control area, and from premises within the control area to premises outside the control area.

Second, we have learned that, for premises in control areas and premises that have had previous introductions of HPAI within the same outbreak (that is, from the start of the outbreak until the HPAI outbreak is declared eradicated nationally pursuant to the WOAH standards as described above) biennial paper-based audits are insufficient. Paper-based audits alone do not enable us to determine whether a premises has sufficient biosecurity measures in place to reduce the risk of introduction or reintroduction of HPAI. Our experiences have indicated that the effectiveness of a poultry biosecurity plan is determined not only by its provisions, but also by how well the plan is implemented. Visual inspection of the premises is needed to evaluate how well the plan is implemented.

Effective implementation of a poultry biosecurity plan can directly influence the amount of indemnity that APHIS pays. Effective implementation of a poultry biosecurity plan likely reduces the risk of introduction of HPAI onto a premises and mitigates its spread, if introduced. Less risk of HPAI introduction and spread would, in turn, reduce the need to destroy birds and thus reduce the need of APHIS to make indemnity payments. As noted previously, since 2022, APHIS has spent approximately $227 million on indemnity payments to premises that have been infected multiple times with HPAI. A total of 67 unique commercial poultry premises have been infected at least twice with HPAI during the current outbreak, including 19 premises that have been infected 3 or more times. In addition, there are two non-commercial premises that have had repeat HPAI infections. Based on epidemiologic findings in the ongoing 2022-2024 outbreak, biosecurity improvements reduced the likelihood of a premises contracting HPAI, as compared to farms that were infected with HPAI. However, the current outbreak has surpassed the 2014-2015 outbreak as the largest animal health emergency in U.S. history, and APHIS' experiences to date in 2024 indicate that the risk of introduction of HPAI onto premises persists.

This interim rule will serve to reduce the risk that a producer becomes inclined to disregard biosecurity because they believe that APHIS will continue to cover the costs associated with damages related to an HPAI outbreak through indemnity payments regardless of their biosecurity status. The current regulations do not provide a sufficient incentive for producers in control areas or buffer zones to maintain biosecurity throughout an outbreak. The current regulations provide for indemnity for poultry that are depopulated, without visually confirming that the premises are taking appropriate biosecurity measures to prevent future infection and spread. The compensation provided covers the value of the poultry that would otherwise be of, at most, minimal salvage value because they would have likely died naturally because of HPAI infection. Conversely, a flock may need to be depopulated before it has reached maturity, and a producer could maximize the profit associated with its poultry and products. The requirements of this interim rule will address both of these issues in the current regulations: Indemnity will now be conditioned in certain instances on visual evaluation of biosecurity, and adequate biosecurity, in turn, will increase the likelihood that poultry reach the age of maturity for the product ( e.g., table eggs, hatching eggs, meat, etc.) they are being marketed for. As of November 2024, APHIS has spent approximately $296 million on indemnity and response payments to premises infected multiple times during the 2022-2024 outbreak, and an estimated $128 million in indemnity and response payments for premises that were infected while in a buffer zone. This interim rule allows APHIS to restrict indemnity payments to those previously infected producers and those producers in buffer zones who have undergone biosecurity audits to verify biosecurity measures, thereby reducing the incentive to undertake that risky behavior.

In March 2024, a development occurred relative to the lateral spread of HPAI that further underscored the need for revision to the indemnity regulations in poultry: HPAI was detected in dairy cattle. Typically, HPAI is sporadically detected in mammals, particularly those with close contact to infected poultry and wild birds, those that share feed or water sources, or those that scavenge carcasses. However, the confirmation of HPAI in dairy cattle in late March 2024, and the subsequent transmission of the disease within and between dairy herds, marked a significant change in the epidemiology of HPAI. The presence of HPAI in cattle also posed another potential source of the virus for poultry flocks. USDA and State teams have conducted extensive epidemiological work to investigate the links between HPAI-affected dairy premises and spillover into poultry premises. Data collected since March 2024 indicates that virus can be transmitted on equipment, people, or other items that move from farm to farm. Epidemiological investigations identified the potential factors for the transmission between premises as the movement of livestock, numerous people, vehicles, and other farm equipment frequently moving on and off an affected premises and on to other premises, often a part of normal business operations. In particular, transmission factors include shared equipment which is not cleaned between farms; contaminated equipment; shared personnel and housing; frequent visitors with access to animals; and presence of other species on farms. 13

Additionally, since April 2024, several cases in workers on affected dairy and poultry premises have been reported. The fact that shared personnel, frequent visitors, vehicles and other equipment are transmission factors may indicate the inadequacy of current biosecurity measures ( e.g., inadequate cleaning and disinfection of personnel and vehicles prior to leaving an infected premises and/or inadequate restriction of movement on and off premises, all foundational components of biosecurity, could allow transmission of HPAI to a new, previously uninfected premises).

APHIS is amending § 53.10 to require biosecurity audits for two statuses of poultry premises in order for owners and/or contractors (hereafter collectively referred to in this section of the preamble as “producers”) to qualify for indemnity arising out of the destruction of poultry destroyed due to an outbreak of HPAI. One status of poultry premises for which this interim rule will require biosecurity audits are premises located in the buffer zone of a control area for HPAI. If a producer intends to move poultry onto a premises located in a buffer zone and wishes the poultry moved onto the receiving premises to be eligible for future indemnity payments in the event that the receiving premises is later infected with HPAI and the poultry must be destroyed, the receiving premises must pass a biosecurity audit. If the receiving premises passed a biosecurity audit within the six (6) months preceding the intended date of movement of the poultry onto the receiving premises, a new biosecurity audit is unnecessary. The audit will be done virtually unless the SAHO requests an in-person audit.

The other status of poultry premises for which this interim rule will require biosecurity audits are previously infected premises. If producers intend to restock the previously infected premises, that premises must pass a biosecurity audit prior to the movement of poultry onto the premises. In order for the premises to maintain eligibility for indemnity for a future infection within the same outbreak, the premises must pass a virtual biosecurity audit every six (6) months, until the State in which the premises is located, declares freedom from HPAI. As discussed previously, to declare freedom from HPAI, the State must provide the relevant epidemiological evidence that shows proof of an effective surveillance program and demonstrate, through testing, an absence from infection in susceptible poultry populations in that State.

Through requiring a biosecurity audit as a condition to receiving indemnity for the destruction of poultry on premises located in the buffer zone and previously infected premises, these regulatory revisions will incentivize producers to ensure that their commercial poultry premises are implementing and maintaining appropriate poultry biosecurity plans. As previously discussed, enhanced compliance with poultry biosecurity plans is expected to mitigate the introduction and spread of HPAI.

APHIS is also amending § 53.11 to set forth the process for conducting the biosecurity audits required by § 53.10, including use of the biosecurity audit tool, the process for reconsideration of a final audit determination, and the process for revising the biosecurity audit tool.

In addition, APHIS is also amending § 53.1 to add definitions for the terms “buffer zone,”, “control area,” and “infected zone,” which are used in amended § 53.10 and/or § 53.11.

The specific nature of the revisions is discussed immediately below.

As we noted above, § 53.10 of the regulations provides conditions under which indemnity claims are not allowed. We are only proposing changes to § 53.10(g).

We are proposing some minor changes to § 53.10(g)(1). All references to the word “animals” in this section is being changed to “poultry” for clarity. Additionally, we are breaking up § 53.10(g)(1). Revised § 53.10(g)(1) will solely contain the introductory language indicating that APHIS will not allow indemnity claims unless certain conditions are met and the first condition of having in place and following a poultry biosecurity plan is moved to new § 53.10(g)(1)(i).

We are also revising § 53.10(g) to provide several additional conditions under which indemnity claims are not allowed. Under new § 53.10(g)(1)(ii), APHIS will not pay indemnity for the destruction of poultry destroyed due to an outbreak of HPAI for poultry moved onto a premises located in a buffer zone of a control area unless the premises passes a biosecurity audit conducted in accordance with new § 53.11(f)(1)(i) prior to the movement of poultry on the premises; or the premises passed a biosecurity audit within the preceding six (6) months. Under certain circumstances, the Administrator may, upon request by the producer, permit audits to be conducted after the poultry is placed onto the premises if the Administrator determines that such action will not result in the dissemination of HPAI within the United States. For example, poultry may be in transit prior to the receiving premises being notified of its buffer zone status, preventing an audit to be conducted before the poultry arrives on the premises. To ensure the welfare of the poultry, the receiving premises may be required to accommodate the poultry prior to passing a biosecurity audit. If the request for an audit after the poultry is placed onto a premises is denied, the premises will not be eligible to receive future indemnity payment for the poultry placed on the premise until the premises passes a biosecurity audit conducted in accordance with new § 53.11(f)(1)(i) if the poultry are placed irrespective of the Administrator's determination.

Additionally, under new § 53.10(g)(1)(iii), APHIS will not pay indemnity for the destruction of poultry destroyed due to an outbreak of HPAI for poultry moved onto a premises that has previously been infected with HPAI during the same outbreak, unless the premises passed a biosecurity audit conducted in accordance with new § 53.11(f)(1)(ii) prior to the movement of poultry onto the premises. APHIS views an occurrence of HPAI as being during the same outbreak if it occurs before the HPAI outbreak is declared eradicated nationally, pursuant to the WOAH standards as described above; unless the movement occurs after the U.S. declares freedom from HPAI. We appreciate that an outbreak may span several years; however, effective biosecurity is possible throughout the duration of an outbreak. This is evidenced by the many premises that have not had a single introduction of HPAI during the current outbreak, despite the presence of risk factors for HPAI introduction, such as being in the flyway of migratory wild birds.

Notwithstanding the impact this outbreak has had on financial resources and the continuing economic concerns, this interim rule is not retroactive. Once issued, infections which were detected prior to the publication will not be considered in the statuses of premises. Further, upon publication, a small number of premises may find themselves located within a buffer zone. If these premises have scheduled movements which occur within a few days of the rule publication, they would have two options to satisfy the rule's requirements: (1) If possible, delay the shipment until an audit can be performed or (2) utilize § 53.10(g)(1)(ii) to request a post-placement audit from the Administrator (if the shipment cannot be delayed). All previously infected premises in a State must pass virtual biosecurity audits every six (6) months until the State in which the premises is located declares freedom from HPAI. The additional audits are based on APHIS' review of chronological outbreak data regarding date of all case detections relative to virus elimination and audit dates for known infected poultry premises. The data analysis indicated that previously infected premises that had biosecurity audits conducted on a voluntary basis did not have any HPAI introduction within 180 days post-audit and movement of poultry. Based on this data, APHIS found that the risk of HPAI reintroduction on a previously infected premises is low within 6 months. Additionally, the 180 days roughly aligns with wild bird migratory patterns, when increased risk of introduction from wild birds is elevated, and it would be appropriate to ensure poultry premises are implementing heightened biosecurity practices.

As stated previously, the regulations currently exempt producers from having to develop and follow a poultry biosecurity plan as a condition of indemnity for HPAI if any of the following apply:

• Commercial table-egg laying premises with fewer than 75,000 birds;

• Egg-type game bird and egg-type waterfowl premises with fewer than 25,000 birds;

• Premises on which fewer than 100,000 broilers are raised annually; or

• Premises on which fewer than 30,000 meat turkeys are raised annually.

Because these premises are not currently required to develop and follow a poultry biosecurity plan, we are also exempting them from being required to pass a biosecurity audit. As we noted in the 2016 interim rule, more than 97 percent of turkeys and 99 percent of broilers are raised on farms that are above these size thresholds. Additionally, whereas the regulations had previously cited the relevant provisions of the NPIP regulations for the first two size standards, to aid in readability of the section, we are removing the reference to the NPIP regulations and, in their place, adding the actual size standards that are being referenced. We are not changing the size standards themselves, simply restating them within § 53.10(g)(2).

Finally, we are adding a new paragraph (g)(3) to the section. This paragraph states that, notwithstanding the conditions in paragraphs (g)(1) and (2), the Department will not pay claims arising out of the destruction of poultry destroyed due to an outbreak of HPAI if the poultry was moved onto a premises in an infected zone and if the poultry becomes infected with HPAI within 14 days following the dissolution of the control area in which the infected zone is located. The incubation period for HPAI viruses in naturally infected chickens ranges from 3-14 days. Once a control area is released, there is significantly less risk of disease spread caused by common-source lateral transmission.

To clarify the scope of the new requirements to receive indemnity for poultry, we are adding definitions for buffer zone, infected zone, and control area to § 53.1 of the regulations, which contains definitions of terms used in 9 CFR part 53. We are defining buffer zone as “[t]he zone within a control area that immediately surrounds an infected zone.” We are defining infected zone as “[t]he zone within a control area that immediately surrounds a premises infected with highly pathogenic avian influenza, up to the beginning of the buffer zone.” As we noted above, currently buffer zones are usually the area situated between 3 and 10 km from an infected premises, and the SAHO determines and communicates to producers whether they are in the infected zone or the buffer zone, or outside of the control area entirely. However, to allow for the possibility of larger or smaller control areas, infected zones, and/or buffer zones in the future, we are not specifying a particular distance from the infected premises in our definitions. As previously stated, multiple factors are considered in determining control area size for HPAI, including infected premises transmission pathways and estimates of transmission risk, poultry movement patterns and concentrations, distribution of susceptible wildlife in proximity, natural terrain, and jurisdictional boundaries. We are defining control area as “[t]he area around a premises infected with highly pathogenic avian influenza and consisting of an infected zone and a buffer zone, the bounds of which are determined and communicated to producers by Federal or State officials.” Again, we envision that in most instances the SAHO will make the final determination for setting the perimeter of the control area and communicating the bounds of the control area to producers. This is, as noted above, the current practice. However, our definition does provide latitude for APHIS to determine and set the bounds of the control area. We envision that we will defer to the SAHO except in extraordinary circumstances, such as when a declaration of extraordinary emergency within the State has been made pursuant to 7 U.S.C. 8306(b) of the Animal Health Protection Act.

The prohibition on indemnity claims that we are adding to the regulations in paragraph (g)(3) of § 53.10 is warranted because, based on our definitions, poultry premises in the infected zone either are infected with HPAI or are in close proximity to an infected premises, and the incubation period for HPAI is up to 14 days. This additional requirement for future federal indemnity eligibility is necessary to limit movement of poultry into an area where poultry are at an increased risk for exposure and infection with HPAI.

Section 53.11 provides conditions under which payment will be made on indemnity claims resulting from HPAI outbreaks. We are amending § 53.11 to describe how the biosecurity audits, required by the revisions to § 53.10(g), will be conducted. We are redesignating current paragraph (f) of the section as paragraph (g), and we are adding a new paragraph (f), which discusses the parameters surrounding and content of these biosecurity audits and how the biosecurity audit tool will be updated. The relevant biosecurity audit is determined by the status of a premises prior to movement of poultry onto that premises.

New paragraph (f)(1) of § 53.11 provides that APHIS requires a biosecurity audit to be conducted on the following poultry premises:

• For premises in a buffer zone, a biosecurity audit shall be conducted virtually by the auditor, unless the SAHO in the State where the premises is located requests an in-person audit. For example, if the facility lacks necessary equipment or IT infrastructure on the premises to conduct a virtual audit, a SAHO could request an in-person audit.

• For previously infected premises, a biosecurity audit shall be conducted in-person by the auditor, unless the auditor determines that extenuating circumstances warrant a virtual audit. Extenuating circumstances include, but are not limited to, severe adverse weather conditions and employee safety considerations. All previously infected premises must pass virtually conducted biosecurity audits every six (6) months after the initial in-person audit until the State in which the premises is located declares freedom from HPAI.

We are allowing biosecurity audits of poultry premises in a buffer zone to be conducted remotely because, while the premises are at risk of becoming affected with HPAI, they are, by definition, currently uninfected but in proximity to infected premises, and because premises in the buffer zone, as a whole, undergo periodic surveillance. Surveillance activities include but are not limited to, gathering epidemiological information through observation and communication with other agencies. Active sampling of poultry is conducted on premises at control area establishment, then at set time intervals of 5-7 days (or more frequently if warranted) until the control area is closed. In addition, because premises in a buffer zone may have poultry onsite during a biosecurity audit, a virtual biosecurity audit helps to mitigate the risk of introduction of HPAI into the premises due to the increased vehicular and foot traffic on the premises from personnel that are conducting the audit. Moreover, in-person audits require more time and personnel resources and are logistically more complex compared to virtual audits. If the number of buffer zone audits conducted to date is an indication of what to expect as the current outbreak continues, mandating these audits to be in-person would stretch available resources that are already currently being utilized for other HPAI response activities and routine non-HPAI activities. For these reasons, a virtual visual inspection (which is conducted using a phone camera, computer, or other transmitting device) should usually suffice for the biosecurity audit of the premises itself. If a producer is unable to participate in a virtual inspection, due to lack of internet or a transmitting device at the premises, the audit may be conducted in-person.

Conversely, because previously infected poultry premises have experienced an outbreak of HPAI and have the highest risk of reintroduction resulting from significant biosecurity lapses, we must verify how well the plan is implemented and maintained on site. In order to ensure that reintroduction risks are being effectively mitigated at previously infected premises, we are requiring that these biosecurity audits be conducted in person, absent extenuating circumstances. Examples of extenuating circumstances include, but are not limited to, severe adverse weather conditions and employee safety considerations. APHIS would require an in-person audit because once HPAI response activities are completed, including depopulation, the premises would not contain any poultry on the premises that would be at risk for HPAI from conducting the audit. With an in-person audit, APHIS will be able to be more meticulous in our approach of looking at the premises and ensuring that producers are taking appropriate biosecurity measures. Additionally, the absence of poultry on the premises eliminates any further risks of HPAI spread and introduction.

APHIS considered, but did not pursue, two alternate options for the auditing process. One was to require more documentation, such as photos of the property, Google Earth TM stills, and examples of signage, as part of an OSA paper-based review of the premises. However, this option was discarded because this approach does not allow for a holistic review of the maintenance and physical security of the structures at the facility, and it may not capture seasonal changes at the facility that could present a biosecurity risk. A second option considered was to conduct all audits virtually. This option was discarded for premises that have previously experienced an outbreak and wish to restock because the virtual audit is limited by what the phone camera, computer, or other transmitting device relays to the auditor. Given that previously infected premises have experienced an outbreak of HPAI, such a limited view may not disclose all possible risks of reintroduction of HPAI to the premises, and require an in-person audit for better visual and auditory context, absent extenuating circumstances. To provide two examples that underscore the importance of in-person audits for visual and auditory context, a component of the audit involves evaluating whether feed and bedding at the facility may have been contaminated by exposure to rodents. Evidence (visual or auditory) of previous or current rodent infestation at the premises may be much easier to identify in person than virtually. Another component requires the inspector to inspect and/or monitor the enclosed structures housing live poultry to ensure sound construction and that they are kept in good repair. An in-person auditor may hear air circulation suggesting a hole or breach in the facility that would not necessarily be easy to detect through a virtual audit.

To implement these two biosecurity audit processes within the Agency, APHIS developed the Biosecurity Compliance Audit Program (BCAP), which includes a BCAP Program Manager within APHIS' Veterinary Services program, and an auditing team comprised of an auditor and a reviewer. The auditor makes the initial determination of whether a premises passes a biosecurity audit. Generally, APHIS expects the auditor role will be filled by a State employee. However, if a State lacks the human resources to fill the position, an APHIS employee can fill the role. Conversely, the reviewer makes the final determination of whether a premises passes a biosecurity audit. This position will always be an APHIS employee because a final audit determination is an Agency decision that affects the eligibility of the producer to receive future indemnity payments for poultry destroyed due to HPAI. All biosecurity auditors and audit reviewers will undergo a USDA-led training program prior to being added to a team. The training includes ensuring consistent application of the biosecurity audit tool, awareness of different poultry production types and farm layouts, and different methods and technologies for implementation of biosecurity.

During biosecurity audits, the audit team will conduct the audits using a biosecurity audit tool ( https://www.aphis.usda.gov/sites/default/files/biosecurityaudit.pdf ), developed by APHIS with State and industry input. From January 2024 through May 2024, industry provided APHIS with oral and written feedback regarding the operational feasibility of implementing on an ongoing basis a biosecurity audit checklist in use provisionally for poultry biosecurity audits conducted since the start of the current outbreak. The tool includes aspects of the current paper-based biosecurity audit that is conducted by OSA's on at least a biennial basis. In addition, the biosecurity tool was built upon the NPIP biosecurity criteria and the HPAI Control Area Placement Biosecurity Audit Checklist that was developed in 2022. As stated previously, as part of the biennial biosecurity audit, the OSA will, at a minimum, evaluate the poultry biosecurity plan itself, which includes an evaluation of the poultry biosecurity plan, against 14 biosecurity principles articulated in the NPIP Program Standards policy document, and review the documentation showing that the poultry biosecurity plan is being implemented. A member of the audit team will conduct this review as well. The audit tool also includes visual verification of perimeter buffer areas; line-of-separation (LOS) procedures for personnel, visitors, equipment, and vehicles; and on-premises rodent and wildlife mitigations, some of the 14 NPIP biosecurity principles. Use of the audit tool will ensure that audit teams consistently review premises and identify deficiencies in biosecurity. APHIS is making a copy of the tool available as a supporting document for this interim rule on Regulations.gov .

Revisions to the audit tool are addressed in new § 53.11(f)(6). The BCAP Program Manager will review the tool at least on an annual basis. As biosecurity audits are conducted and additional data is gathered, as updated epidemiological information becomes available, or as other advancements in technology and production practices occur, APHIS may determine that the audit tool needs to be revised. APHIS has two processes to revise the audit tool. Under the standard process, if the Administrator determines that revisions to the audit tool are necessary, APHIS will publish a notice in the Federal Register informing the public of our intention to amend the biosecurity audit tool. In the notice, APHIS will describe the proposed revisions to the audit tool, the reasons for the revisions, and provide a public comment period. Under the immediate process, the biosecurity audit tool will be immediately revised if the Administrator determines that the biosecurity tool is no longer sufficient for auditors to use to conduct biosecurity audits pursuant to new § 53.11(f)(1)(i) or (ii). APHIS will update the audit tool and subsequently publish a notice in the Federal Register advising the public of the revisions and the reasons for the revisions, providing an effective date for the revisions, and providing for a public comment period.

Under new § 53.11(f)(2), the producer must allow auditors access to their premises (whether virtually or in-person) and access to documentation in order for the auditors to complete the biosecurity audit using the biosecurity audit tool. APHIS expects that any producer interested in moving poultry onto a premises in a buffer zone or onto a previously infected premises will contact APHIS to schedule the biosecurity audit. A premises will initially pass a biosecurity audit if the auditor determines that the minimum requirements are met for all biosecurity audit criteria in the biosecurity audit tool. If deficiencies are identified, the auditors will communicate the identified deficiencies to producers. Producers may ask clarifying questions about the nature of the deficiencies and/or provide additional documentation to remediate the identified deficiency. The auditor, where appropriate, may work with the producer to identify solutions to resolve the deficiencies and may revise the audit results based on the additional information provided. If the producer needs further guidance on addressing a deficiency that goes beyond the auditor's training, the auditor will send the request to the audit reviewer and, if needed, the BCAP Program Manager. Once the audit process concludes, the auditor will submit the audit package to a reviewer based in the State where the premises is located.

New § 53.11(f)(3) provides that the reviewer reviews the audit package for completeness, accuracy, and consistency with other audits. After review, the reviewer will render a final audit determination of pass or fail. To aid in that determination, the reviewer may request to view the premises in question to make virtual visual verifications; the reviewer must be afforded the same access previously afforded to the auditor. As provided in our previous discussion regarding § 53.10(g), premises are required to pass a biosecurity audit in order for the poultry on the premises to be eligible for indemnity.

New § 53.11(f)(4) provides a reconsideration process for failed outcomes of biosecurity audits. If the producer disagrees with the final audit determination of the reviewer, the producer may send a request for reconsideration to the BCAP Program Manager through email or by postal mail to the addresses listed in the regulations. The request for reconsideration must be in writing, state the material facts and reasons upon which the producer relies to show that the producer wrongfully failed the biosecurity audit, and be received by the BCAP Program Manager within 14 calendar days of communication of the reviewer's final audit determination. After receipt of the reconsideration request, the BCAP Program Manager will review the reconsideration request, the audit package prepared by the auditor, and the reviewer's final audit determination. If the BCAP Program Manager disagrees with the reviewer's final determination the results of the biosecurity audit become a pass; if the BCAP Program Manager agrees that a biosecurity deficiency exists, the reconsideration request proceeds to panel review. A panel consisting of the SAHO of the State where the premises is located, the APHIS Area Veterinarian in Charge, and the BCAP Program Manager will review the reconsideration request, the audit package prepared by the auditor, and the reviewer's final audit determination. The panel's decision is final, and the outcome of the reconsideration process will be communicated to the producer, by the auditor, as promptly as circumstances allow and will state, in writing, the reasons for the decision.

Finally, the duration of the validity of a biosecurity audit is addressed in new § 53.11(f)(5). A final audit determination of pass will remain valid for six (6) months except for any premises that changes its biosecurity plan, biosecurity coordinator, ownership, or infrastructure during that six-month period. If such premises makes any of the aforementioned changes, the premises must pass a new biosecurity audit in accordance with § 53.11(f)(1)(i) or (ii), as applicable, prior to the movement of poultry onto the premises. APHIS determined the length of time for which a biosecurity audit should be valid based on a review of data from the HPAI outbreak in poultry. The data indicated that since the onset of this current outbreak in 2022, the number of poultry premises located in buffer zones that had an HPAI introduction within 180 days of undergoing a biosecurity audit and moving birds onto the premises is less than 3 percent. Although data are limited based on the voluntary nature of the biosecurity audits, analysis of the chronological data for previously infected premises shows there was no indication that the previously infected premises had an HPAI introduction within 180 days post-audit and movement of poultry. Once this interim rule becomes effective, APHIS will continue to monitor this data to use in the Agency's decision-making process.

Immediate action is necessary to incentivize commercial poultry owners and contractors (hereafter referred to in this section of the preamble as “producers”) to implement critical biosecurity measures to reduce the risk of introduction of HPAI and avoid actions that contribute to its spread. During the most recent HPAI outbreak, which began in 2022 and is ongoing, APHIS has learned more about the disease risk for poultry premises in proximity to other infected poultry premises and has discovered the limits of the current regulatory approach. APHIS modified guidance documents for the current outbreak; however, continued inconsistent application of biosecurity measures by producers despite the ongoing risk of introduction of HPAI from wild birds and nearby infected premises has resulted in continued repeat infections on some poultry premises. Since March 2024, APHIS has further encountered developments associated with spread of HPAI to, from, and within dairy cattle herds, as well as farm workers in contact with those herds. Cumulatively, all of these lessons learned from the 2022-2024 outbreak underscore the need for immediate action to incentivize producers with at-risk premises, through conditioning indemnity payments on passing biosecurity audits, to take the necessary steps to implement biosecurity measures to mitigate the introduction and spread of HPAI, regardless of potential source of infection. Therefore, immediate action is needed to mitigate the introduction and spread of HPAI.

Since 2016, APHIS has required that, as a condition for indemnity for poultry destroyed due to an HPAI outbreak, poultry producers above certain size thresholds must provide a statement that at the time of detection of HPAI in their premises, they had in place and were following a poultry biosecurity plan. Since 2018, APHIS has also required that the poultry biosecurity plans be audited at least once every 2 years by the producer's OSA. Recent lessons learned from the ongoing HPAI outbreak have highlighted that this regulatory approach is insufficient in certain instances and reinforced the importance of biosecurity in decreasing the chance of a virus introduction or reintroduction occurring in a premises or having the virus spread from premises to premises.

First, we have learned more about how proximity to infected premises impacts HPAI spread. During an HPAI outbreak, States designate “control areas” as the perimeter of at least 10 km beyond the perimeter of the poultry premises affected with HPAI. During this current outbreak, it has become increasingly clear that poultry premises within these control areas, consisting of an infected zone and a buffer zone, are at a higher risk of becoming infected with HPAI than premises outside of control areas. To improve the understanding of risk factors associated with HPAI on table egg farms and turkey farms in the United States, APHIS conducted case-control studies to identify risk factors for HPAI and biosecurity challenges. 14 The findings confirm the need for both biosecurity and surveillance on poultry farms near an infected premises, to prevent infection and ensure rapid detection, whether the virus is likely spreading by wild birds or laterally between farms. Because premises in control areas are at a higher risk of being infected with HPAI, it is even more imperative that producers implement adequate biosecurity measures to prevent the introduction and spread of HPAI from premises to premises within the control area, and from premises within the control area to premises outside the control area.

Second, we have learned during this current outbreak that enhanced regulatory oversight of poultry premises in control areas is necessary to ensure that producers for which a poultry biosecurity plan is required are effectively implementing the poultry biosecurity plan. Currently, the regulations only require the poultry biosecurity plan to be audited every two (2) years or a sufficient number of times during that period to satisfy the producer's OSA. Additionally, the audits are currently paper-based. The current biennial audit failure rate is zero, however despite these biosecurity plans being present, APHIS has continued to see HPAI detections on poultry farms with a plan and epidemiologic findings on these premises show a failure of biosecurity in one or more areas. The effectiveness of a poultry biosecurity plan, however, is determined not only by its provisions (which is the focus of a paper-based audit), but also by how well the plan is implemented and maintained on-site.

Through the current outbreak, APHIS has found that the effectiveness of a poultry biosecurity plan would likely be better evaluated by visual inspection of the premises in question, specifically visual inspection of the more at-risk premises in the control area. When producers fail to effectively implement and maintain their poultry biosecurity plan, the deficiencies can be quite pronounced and the consequences quite significant—namely that the premises gets infected with HPAI multiple times. In one particular case, APHIS determined that a producer had avoided the required biennial audits and had not effectively implemented a poultry biosecurity plan before HPAI was introduced onto the producer's premises. Ultimately, six premises owned by the same producer and within the same control area were infected with HPAI. Significant biosecurity lapses were also identified at each of the affected premises. Biosecurity deficiencies may also be a contributing factor to premises becoming reinfected with HPAI. During the current HPAI outbreak, a total of 67 unique commercial poultry premises have been infected with HPAI at least twice, including 19 premises that have been infected 3 or more times.

Third, in March 2024, HPAI was detected in dairy cattle. Prior to this, HPAI was sporadically detected in mammals, particularly those with close contact to infected poultry and wild birds, those that share feed or water sources, or those that scavenge carcasses. However, the confirmation of HPAI in dairy cattle in late March 2024, and the subsequent transmission of the disease largely due to the interstate and regional movement of livestock, people, and equipment, marked a significant change in the epidemiology of HPAI and posed another potential source of the virus for poultry flocks.

As of November 2024, APHIS and State teams have conducted extensive epidemiological work to investigate the links between HPAI-affected dairy premises and evidence of spillover into poultry premises. This new, distinct HPAI virus genotype poses a new animal disease risk as it can infect both cattle and poultry. The phylogenetic and epidemiological data indicate spread between dairy premises, and from dairy premises to poultry premises. 15 While many factors contribute to transmission between premises, small amounts of unpasteurized milk from affected dairy animals can harbor high levels of virus and can be easily spread among dairy farms and between dairy and poultry farms through the movements of people, vehicles, trucks, and other animals including non-migratory, peridomestic birds. Poultry are much more susceptible to small amounts of virus that results in infection, which increases the potential for ongoing disease spread. Finally, since April 2024, several cases in workers on affected dairy and poultry premises have been reported.

This recent lateral spread of HPAI within and between dairy herds and spillover into poultry flocks, poses increased risks of HPAI introduction and spread for poultry that effectively implemented poultry biosecurity plans may mitigate. Without the biosecurity audits for at-risk poultry premises to confirm effective implementation of poultry biosecurity plans as established by this interim rule, the spread of HPAI in the United States could escalate, not only in poultry, but also in other livestock, increasing the impact of the current outbreak. As demonstrated by the current outbreak, that impact extends beyond the economic implications for the livelihood of poultry producers to the physical health of individual workers who come into contact with infected animals. In response to the current outbreak in dairy cattle, APHIS has issued a second Federal Order to require national surveillance to continue to address the risk the disease in dairy cattle, and as a result, potential spread to other species. Escalation in the introduction and spread of HPAI needs to be addressed immediately.

Under these circumstances, the Administrator has determined for good cause under 5 U.S.C. 553(b)(B) that prior notice and opportunity for public comment is impracticable and that there is good cause under 5 U.S.C. 553(d)(3) for making this action effective less than 30 days after publication in the Federal Register .

We will consider comments we receive during the comment period for this interim rule (see DATES above). After the comment period closes, we will publish another document in the Federal Register . The document will include a discussion of any comments we receive and any amendments we are making to the interim rule.

This interim rule has been determined to be significant for the purposes of Executive Order 12866 as amended by Executive Order 14094, “Modernizing Regulatory Review,” and, therefore, has been reviewed by the Office of Management and Budget (OMB).

We have prepared an economic analysis for this interim rule. The economic analysis provides a cost-benefit analysis, as required by Executive Orders 12866 and 13563, which direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, 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 economic analysis also examines the potential economic effects of this interim rule on small entities, as required by the Regulatory Flexibility Act. The economic analysis is summarized below. The full analysis may be viewed on the Regulations.gov website (see ADDRESSES above for instructions for accessing Regulations.gov ) or obtained from the person listed under FOR FURTHER INFORMATION CONTACT .

APHIS is establishing requirements for certain poultry premises to complete a biosecurity audit as a condition for receiving indemnity payments for poultry depopulated because of an outbreak of HPAI. APHIS' response to HPAI via regulation is not new. In 2016, APHIS published an interim rule (81 FR 6745-6751, Docket No. APHIS-2015-0061)  16 that amended § 53.10 of the indemnity regulations to require producers provide, as a condition for receiving indemnity payments, a statement that at the time of HPAI detection on their premises, that they had in place and were following a poultry biosecurity plan consistent with NPIP biosecurity standards. In response to comments received during the comment period on the interim rule, in the final rule published in 2018, APHIS amended § 53.11 of the indemnity regulations to require poultry biosecurity plan audits at least once every 2 years or enough times during that period to satisfy the Official State Agency. 17 APHIS believed that the provisions of the 2016 HPAI indemnity rule, as amended to include this auditing provision, would be sufficient to reduce spread of the virus in the event of another HPAI outbreak. However, APHIS' experience with a subsequent outbreak of HPAI in 2022-2024 indicated that the 2016 interim rule and the subsequent 2018 final rule were insufficient to address initial introduction of HPAI into flocks on premises in proximity to an infected premises, or subsequent reintroduction of HPAI into flocks on premises previously infected with HPAI.

This interim rule amends § 53.10(g) to require biosecurity audits for two statuses of premises in order for owners and/or contractors (hereafter collectively referred to in this section of the preamble as “producers”) to qualify for indemnity arising out of the destruction of poultry destroyed due to an outbreak of HPAI and that exceed defined size thresholds delineated by poultry type. One status of premises for which this interim rule will require biosecurity audits are premises located in a buffer zone of a control area for HPAI. If a producer intends to move poultry onto a premises located in a buffer zone and wishes the poultry moved onto the receiving premises to be eligible for future indemnity payments in the event that the receiving premises is later infected with HPAI and the poultry must be destroyed, the receiving premises must pass a biosecurity audit. If the receiving premises passed a biosecurity audit within the six (6) months preceding the intended date of movement of the poultry onto the receiving premises, a new biosecurity audit is unnecessary. The audit will be done virtually unless the SAHO requests an in-person audit. The other status of premises for which this interim rule will require biosecurity audits are previously infected premises. If producers intend to restock the previously infected premises, that premises must pass a biosecurity audit prior to the movement of poultry onto the premises. In order for the premises to maintain eligibility for indemnity for a future infection within the same outbreak, the premises must pass a virtual biosecurity audit every six (6) months, until the State in which the premises is located, declares freedom from HPAI.

Current § 53.10(g) exempts producers from having to develop and follow a poultry biosecurity plan as a condition of indemnity for HPAI if any of the following apply:

The producer is a(n):

• commercial table-egg-laying premises with fewer than 75,000 birds;

• egg-type game bird and egg-type waterfowl premises with fewer than 25,000 birds;

• premises on which fewer than 100,000 broilers are raised annually; or

• premises on which fewer than 30,000 meat turkeys are raised annually.

Because these premises are not currently required to develop and follow a poultry biosecurity plan, in this interim rule, we are also exempting them from being required to pass a biosecurity audit. More than 97 percent of turkeys and 99 percent of broilers are raised on farms that exceed these size thresholds. However, flock size is non-significantly associated with increased risk, provided that larger operations are more at risk than smaller operations in terms of number of poultry on the operation, not the implementation of a biosecurity plan.

Regarding the defined size thresholds delineated by poultry type, current § 53.10(g) cited the relevant provisions of the NPIP for the first two size standards. The NPIP is a cooperative Federal-State-industry certification program administered by APHIS to promote biosecurity in poultry. To aid in readability and comprehension of the regulation, APHIS is removing the reference to the NPIP regulations and, in their place, adding the actual size standards that are being referenced. APHIS is not changing the size standards themselves, simply restating them within revised § 53.10(g)(2).

To clarify the scope of the new requirements to receive indemnity payments for poultry, APHIS is adding definitions for buffer zone, infected zone, and control area to § 53.1 of the regulations, which contains definitions of terms used in part 53. APHIS is defining buffer zone as “[t]he zone within a control area that immediately surrounds an infected zone.” APHIS is defining infected zone as “[t]he zone within a control area that immediately surrounds a premises infected with highly pathogenic avian influenza, up to the beginning of the buffer zone.” APHIS is defining control area as “[t]he area around a premises infected with highly pathogenic avian influenza and consisting of an infected zone and a buffer zone, the bounds of which are determined and communicated to producers by Federal or State officials.”

Currently buffer zones are usually the area situated between 3 and 10 km from an infected premises. However, to allow for the possibility of larger or smaller control areas, infected zones, and/or buffer zones in the future, APHIS does not specify a particular distance from the infected premises in the definitions. Multiple factors are considered in determining control area size for HPAI, including infected premises transmission pathways and estimates of transmission risk, poultry movement patterns and concentrations, distribution of susceptible wildlife in proximity, natural terrain, and jurisdictional boundaries.

With respect to limitations on receipt of indemnity payments, APHIS is revising § 53.10(g) to provide several additional conditions under which indemnity claims are not allowed. Specifically, APHIS will not pay indemnity for the destruction of poultry destroyed due to an outbreak of HPAI for poultry moved onto a premises located in a buffer zone of a control area unless the premises passes a biosecurity audit conducted in accordance with new § 53.11(f)(1)(i) prior to the movement of poultry onto the premises. Premises that passed a biosecurity audit within the preceding 6 months are not required to pass a new audit. Additionally, under new § 53.10(g)(1)(iii), APHIS will not pay indemnity for the destruction of poultry destroyed due to an outbreak of HPAI for poultry moved onto a premises that has previously been infected with HPAI during the same outbreak, unless the premises passed a biosecurity audit conducted in accordance with new § 53.11(f)(1)(ii) prior to the movement of poultry onto the premises. APHIS views an occurrence of HPAI as being during the same outbreak if it occurs before the HPAI outbreak is declared eradicated nationally. Finally, APHIS will not pay indemnity claims arising out of the destruction of poultry destroyed due to an outbreak of HPAI if the poultry was moved onto a premises in an infected zone and if the poultry becomes infected with HPAI within 14 days following the dissolution of the control area in which the infected zone is located.

In this interim rule, APHIS is also amending § 53.11 to set forth the process for conducting the biosecurity audits required by § 53.10, including use of the biosecurity audit tool, the process for reconsideration of a final audit determination of fail, and the process for revising the biosecurity audit tool.

For premises in a buffer zone, a biosecurity audit shall be conducted virtually by the auditor, unless the SAHO in the State where the premises is located requests an in-person audit. For previously infected premises, a biosecurity audit shall be conducted in-person by the auditor, unless the auditor determines that extenuating circumstances warrant a virtual audit. Extenuating circumstances, include, but not limited to, severe adverse weather conditions and employee safety considerations. All previously infected premises must pass virtually conducted biosecurity audits every six (6) months until the State in which the premises is located declares freedom from HPAI.

Under new § 53.11(f)(1), APHIS requires biosecurity audits to be conducted as follows:

• For premises in a buffer zone, a biosecurity audit shall be conducted virtually by the auditor, unless the SAHO in the State where the premises is located requests an in-person audit; and

• For previously infected premises, a biosecurity audit shall be conducted in-person by the auditor, unless the auditor determines that extenuating circumstances warrant a virtual audit. Extenuating circumstances, include, but not limited to, severe adverse weather conditions and employee safety considerations.

Under new § 53.11(f)(2), the producer must allow auditors access to their premises (whether virtually or in-person) and access to documentation in order for the auditors to complete the biosecurity audit using the biosecurity audit tool. If deficiencies are identified, the auditors will communicate the identified deficiencies to producers and, where appropriate, may work with the producer to identify solutions to resolve the deficiencies and may revise the audit results based on the additional information provided.

New § 53.11(f)(3) provides that the reviewer reviews the audit package for completeness, accuracy, and consistency with other audits. After review, the reviewer will render a final audit determination of pass or fail. If requested, the reviewer must be afforded the same access to premises previously afforded to the auditor.

New § 53.11(f)(4) provides a reconsideration process for failed outcomes of biosecurity audits. If the producer disagrees with the final audit determination of the reviewer, the producer may send a written request for reconsideration to the BCAP Program Manager through email or by postal mail within 14 calendar days of communication of the reviewer's final audit determination. The BCAP Program Manager will review the reconsideration request, the audit package prepared by the auditor, and the reviewer final audit determination. If the BCAP Program Manager determines that the producer wrongfully failed the biosecurity audit, he or she will change the final audit determination from fail to pass, notify the producer of the change in writing, and close the reconsideration request. If the BCAP Program Manager agrees that the producer failed the biosecurity audit, the reconsideration process will continue to a panel review. A panel consisting of the State Animal Health Official, the APHIS Area Veterinarian in Charge, and the BCAP Program Manager will review the reconsideration request, the audit package prepared by the auditor, and the reviewer's final audit determination. The panel's decision is final and will be communicated to the producer as promptly as circumstances allow and will state, in writing, the reasons for the decision.

Under new § 53.11(f)(5), a final audit determination of pass for a premises that had a biosecurity audit conducted in accordance with § 53.11(f)(1)(i) or (ii) will remain valid for six (6) months except for any premises that changes its biosecurity plan, biosecurity coordinator, ownership, or infrastructure during that 6-month period. If such premises makes any of the aforementioned changes, the premises must pass a new biosecurity audit in accordance with § 53.11(f)(1)(i) or (ii) as applicable, prior to the movement of poultry onto the premises.

APHIS is allowing biosecurity audits of premises in a buffer zone to be conducted remotely because, while the premises are at risk of becoming affected with HPAI, they are, by definition, currently uninfected but in proximity to infected premises, and because premises in the buffer zone, as a whole, undergo periodic surveillance. In addition, because premises in a buffer zone may have poultry onsite during a biosecurity audit, a virtual biosecurity audit prevents the introduction of HPAI into the premises. For these reasons, a virtual visual inspection (which is conducted using a phone camera, computer, or other transmitting device) should usually suffice for the biosecurity audit of the premises itself. If a producer is unable to participate in a virtual inspection, due to lack of internet or a transmitting device, the audit may be conducted in-person. Conversely, because previously infected premises have experienced an outbreak of HPAI and have the highest risk of reintroduction resulting from significant biosecurity lapses, we must verify how well the plan is implemented and maintained on-site. In order to ensure that reintroduction risks are being effectively mitigated at previously infected premises, we are requiring that these biosecurity audits be conducted in person, absent extenuating circumstances.

Revisions to the audit tool are addressed in new § 53.11(f)(6). Under the standard process for revisions to the audit tool, if the Administrator determines that revisions to the biosecurity audit tool are necessary, APHIS will publish a notice in the Federal Register advising the public of the Administrator' determination. The notice will describe the proposed revisions and the reasons for the proposed revisions and will invite public comment on the proposed revisions. Under the immediate process for revisions to the audit tool, if the Administrator determines that the biosecurity audit tool is no longer sufficient for auditors to use to conduct biosecurity audits pursuant to § 53.11(f)(1)(i) or (ii), APHIS will immediately update the biosecurity audit tool. APHIS will publish a notice in the Federal Register advising the public of the Administrator's determination. The notice will specify the revisions and the reasons for the revisions, provide an effective date for the revisions, and will invite public comment on the revisions. The primary intent of the preceding revisions to part 53 is to enhance effective implementation of and adherence to poultry biosecurity plans to mitigate and reduce the introduction, reintroduction, and spread of HPAI. Effective implementation of a poultry biosecurity plan likely reduces the risk of introduction of HPAI onto a premises and mitigates its spread, if introduced. Less risk of HPAI introduction and spread would, in turn, reduce the need to destroy birds and thus reduce the need of APHIS to make indemnity payments. Requirements for biosecurity audits also emphasize and validate biosecurity principles that many individual producers are already implementing on their premises because of participation in the NPIP. Finally, the preceding revisions to part 53 also incentivize timely cleanup of HPAI infected premises to mitigate further disease spread. Producers are more likely to implement biosecurity measures if it will ensure indemnity payments should their premises become infected with HPAI, and their birds must be destroyed. Because many of the biosecurity principles needed to pass the biosecurity audit are already in place, we expect that most producers will not incur large costs from this interim rule. We further find that plausible reductions in indemnity and virus elimination costs are far higher than costs to producers.

As of November 2024, APHIS has spent approximately $227 million on indemnity payments to premises infected multiple times during the 2022-2024 outbreak. Epidemiological data attribute most of the source introductions in the current outbreak to wild birds, likely due to biosecurity gaps. Revising the current regulations to further tie indemnity payments to verified implementation of proven biosecurity improvements will reduce the occurrence of multiple infections of the same premises. Reinfections (like first time infections) result in direct economic losses not only from the loss of stock but also from downtime to sanitize the premises and to complete other HPAI response activities ( e.g., the biosecurity audit). This interim rule should reduce these losses.

Since 2012, there have been two (2) major HPAI outbreaks in the United States; the first between December 10, 2014, and August 16, 2015, and the second from February 2, 2022, to present. Aggregating price data for broiler meat, turkey meat, and table eggs into two (2) groups (prices on those dates during an HPAI outbreak and prices on dates that were not in a HPAI outbreak) show that broiler meat, turkey meat, and table egg prices are higher during a HPAI outbreak when compared to prices during periods of limited HPAI infection.

APHIS expects this interim rule to result in costs to affected producers. Examples of costs include time and labor to implement improvements to current biosecurity practices, time to complete and pass biosecurity audits, delays to restocking, and costs associated with the purchase of or upgrade to equipment needed to conduct a virtual audit, if the producer wishes to have a virtual audit. APHIS expects the benefits of reduced infections from HPAI will outweigh the aforementioned costs associated with this interim rule.

APHIS estimates that this interim rule will reduce costs to APHIS and State partners between $39.56 million and $88.66 million. These estimates include reductions in indemnity and response costs less costs incurred by APHIS and State partners for buffer zone movement audits and previously infected premises audits. APHIS anticipates a slight increase in staff time costs that it will incur as a result of conducting buffer zone movement audits and previously infected premises audits. APHIS expects this interim rule to have costs for producers to facilitate the audit (including up-front costs for the purchase of any equipment necessary to conduct an audit virtually) and to address any resultant biosecurity deficiencies. Producers may also incur additional costs if their premises fails an audit and must go through the reconsideration process meaning more time will pass before poultry may be moved onto the premises or the premises is restocked. Producers in infected zones will face costs from delays to restocking based on forgone profits. APHIS estimates that these costs will result in $0.49 to $0.79 million in time, materials, and recordkeeping costs to producers. Overall, APHIS estimates that this interim rule will have a net benefit of between $38.55 and $87.65 million. In addition to these quantified benefits, APHIS also anticipates that this interim rule will have small unquantified effects on international trade, consumer prices, animal welfare, public health, and producer welfare.

APHIS estimates the total annualized cost of the paperwork and recordkeeping associated with this interim rule to be $286,723.13. Reporting and recordkeeping requirements associated with this interim rule are discussed under the heading “Paperwork Reduction Act.” This interim rule will mostly affect larger commercial poultry operations dealing with HPAI. APHIS estimates that 5.9 percent of all poultry operations will be affected by this interim rule although they are classified as small by the Small Business Administration.

The full economic analysis provides a benefit-cost analysis, as required by Executive Orders 12866 and 13563, which direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, 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 economic analysis also examines the potential economic effects of this interim rule on small entities, as required by the Regulatory Flexibility Act.

This program/activity is listed in the Catalog of Federal Domestic Assistance under No.10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 2 CFR chapter IV.)

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule (1) preempts all State and local laws and regulations that are in conflict with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

This rule has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination With Indian Tribal Governments. Executive Order 13175 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.

APHIS has assessed the impact of this interim rule on Indian Tribes and determined that this interim rule does not, to our knowledge, have Tribal implications that require tribal consultation under Executive Order 13175. Additionally, a virtual listening session, “Tribal Listening Session on Highly Pathogenic Avian Influenza Biosecurity Compliance Audit Program,” was held on July 24, 2023, with no Tribes in attendance expressing concerns regarding the provisions of the interim rule.

If a Tribe requests consultation, APHIS will work with the Office of Tribal Relations to ensure meaningful consultation is provided where changes, additions, and modifications identified herein are not expressly mandated by Congress.

In accordance with section 3507(j) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ), the information collection and recordkeeping requirements included in this interim rule have been submitted for emergency approval to the Office of Management and Budget (OMB).

Written comments and recommendations for the proposed information collection should be sent within 60 days of publication of this notice to www.reginfo.gov/public/do/PRAMain. Find this particular information collection by selecting “Currently under 60-day Review—Open for Public Comments” or by using the search function. Please send a copy of your comments to: (1) Docket No. APHIS-2023-0088, Regulatory Analysis and Development, PPD, APHIS, Station 2C-10.16, 4700 River Road, Unit 25, Riverdale, MD 20737-1238, and (2) Clearance Officer, OCIO, USDA, Room 404-W, 14th Street and Independence Avenue SW, Washington, DC 20250. A comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication of this interim rule.

The U.S. poultry industry is undergoing a severe outbreak of highly pathogenic avian influenza (HPAI); it experienced a similar one in 2015. Pursuant to its existing policy, APHIS is working with State and local animal health officials to combat the outbreak, using, in part, biosecurity plans and audits consistent with principles outlined in the National Poultry Improvement Plan (NPIP). APHIS has denied indemnity for poultry operations without biosecurity plans that destroy eggs and poultry due to HPAI since 2018 unless the premises is exempted. Further, the current paper-based audit process does not always illustrate how well the premises is practicing biosecurity to prevent HPAI infection or reintroduction. APHIS has found that it often needs visual inspection to see how well a premises is carrying out its biosecurity plan.

To help address the spread of HPAI by verifying that commercial premises have poultry biosecurity plans with appropriate mitigations that are being implemented and maintained, APHIS is amending its regulations to require biosecurity audits for two statuses of premises as conditions for indemnity for HPAI, and to include procedures for reconsideration of audit results. One audit is for HPAI-infected premises that intend to restock and wish to be eligible to receive subsequent payments of indemnity for poultry destroyed during an outbreak. The other is for premises in the buffer zone of a control area that intend to move poultry onto a premises within the buffer zone and wish to be eligible to receive payments of indemnity for poultry that have been moved onto the premises. (The buffer zone is the zone within a control area that immediately surrounds an infected zone). Premises in the buffer zone are usually notified of this status by the State Animal Health Official (SAHO), although within this interim rule we are making allowance for notification by APHIS instead.

APHIS plans to allow virtual biosecurity audits of buffer zone premises because, while the premises are at risk of becoming affected with HPAI, they are, by definition, currently unaffected. They are in proximity to affected premises, however, the premises in the buffer zone, as a whole, undergo periodic surveillance. For these reasons, virtual visual inspection should usually suffice. Conversely, previously affected premises will be audited in person (absent extenuating circumstances or a SAHOs request) to ensure that reintroduction risks are being effectively mitigated.

These amendments require the creation of three new information collection activities.

APHIS Biosecurity Audit. Buffer zone poultry premises can be audited virtually unless the SAHO in the State where the premises is located requests an in-person audit. Previously affected premises will be audited in-person, absent extenuating circumstances, unless the SAHO requests a virtual audit. All previously infected premises must pass additional biosecurity audits every 6 months, until the State in which the premises is located declares freedom from HPAI. Producers may use successful biosecurity audits completed within the preceding 6 months, otherwise a new biosecurity audit must be conducted. If premises in a control area change their biosecurity plan, biosecurity coordinator, ownership, or infrastructure during the 6-month period, they are required to pass a new biosecurity audit in accordance with § 53.11(f)(1)(i) or (ii) of this interim rule, as applicable, before moving poultry onto the premises.

A premises will initially pass a biosecurity audit if the auditor determines that the minimum requirements are met for all biosecurity audit criteria in the biosecurity audit tool. If deficiencies are identified, the auditors will communicate the identified deficiencies to producers. Producers may ask clarifying questions about the nature of the deficiencies and/or provide additional documentation to remediate the identified deficiency. The auditor, where appropriate, may work with the producer to identify solutions to resolve the deficiencies and may revise the audit results based on the additional information provided. If the producer needs further guidance on addressing a deficiency that goes beyond the auditor's training, the auditor will send the request to the audit reviewer and, if needed, the BCAP Program Manager. Once the audit process concludes, the auditor will submit the audit package to a reviewer based in the State where the premises is located.

Biosecurity Audit Tool. Claims for avian influenza indemnity, unless exempted, require producers to have a poultry biosecurity plan meeting the biosecurity principles in the NPIP Program Standards. Poultry biosecurity plans support continuity of business and are specific to the premises and its operational procedures. The NPIP Program Standards describe the 14 biosecurity principles that must be included in the biosecurity plan.

APHIS developed the Biosecurity Compliance Audit Program (BCAP) to administer the audits. The BCAP administration includes a BCAP Program Manager within APHIS' Veterinary Services program, and local auditing teams comprised of an auditor and reviewer. The BCAP members will use a biosecurity audit tool APHIS developed with State and industry input. This new biosecurity audit tool includes an evaluation of the premises' poultry biosecurity plan against the 14 biosecurity principles articulated in the NPIP Program Standards and includes an evaluation of the poultry biosecurity plan itself and documentation showing that the plan is being implemented. However, the tool also includes visual verification of perimeter buffer areas; line of separation procedures for personnel, visitors, equipment, and vehicles; and on-premises rodent and wildlife mitigations. Use of the tool will ensure consistency of reviewing premises and identifying deficiencies in biosecurity. The tool may be revised as audits are conducted and additional data is gathered, as updated epidemiological information becomes available, or as other advancements in technology and production practices occur. To that end, the BCAP Program Manager will review the tool at least annually. Changes to the tool will appear in a notice published in the Federal Register inviting public comment.

Reconsideration Process for Audit Results. If the producer disagrees with the final audit determination of the reviewer, the producer may send a request for reconsideration to the BCAP Program Manager through email or by postal mail to the addresses listed in the regulations. The request for reconsideration must be in writing, state the material facts and reasons upon which the producer relies to show that the producer wrongfully failed the biosecurity audit, and be received by the BCAP Program Manager within 14 calendar days of communication of the reviewer's final audit determination. After receipt of the reconsideration request, the BCAP Program Manager will review the reconsideration request, the audit package prepared by the auditor, and the reviewer's final audit determination. If the BCAP Program Manager disagrees with the reviewer's final determination the results of the biosecurity audit become a pass; if the BCAP Program Manager agrees that a biosecurity deficiency exists, the reconsideration request proceeds to panel. A panel consisting of the SAHO of the State where the premises is located, the APHIS Area Veterinarian in Charge, and the BCAP Program Manager will review the reconsideration request, the audit package prepared by the auditor, and the reviewer's final audit determination. The panel's decision is final and the outcome of the reconsideration process will be communicated to the producer, by the auditor, as promptly as circumstances allow and will state, in writing, the reasons for the decision.

We are soliciting comments from the public (as well as affected agencies) concerning our information collection and recordkeeping requirements. These comments will help us:

(1) Evaluate whether the information collection is necessary for the proper performance of our agency's functions, including whether the information will have practical utility;

(2) Evaluate the accuracy of our estimate of the burden of the information collection, including the validity of the methodology and assumptions used;

(3) Enhance the quality, utility, and clarity of the information to be collected; and

(4) Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology; e.g., permitting electronic submission of responses).

The Agency estimates there will be 52 State and 473 business respondents affected by the three new information collections in this interim rule. For the APHIS Biosecurity Audit information collection, the Agency estimates there will be 104 State and 473 business responses, with 624 total annual burden hours for State respondents and total annual 2,728 burden hours for business. For the Biosecurity Audit Tool information collection, the Agency estimates there will be 52 State and 473 business responses, with total burden hours of 208 for State respondents and 1,892 for business respondents. For the Reconsideration Process for Audit Results information collection, the Agency estimates there will be 200 business responses and 200 hours of burden annually. Total burden estimates in summary include:

Estimate of burden: Public reporting burden for this collection of information is estimated to average 4 hours per response.

Respondents: Commercial poultry farm owners and managers; private veterinarians; poultry agencies and organizations; and State animal health officials and laboratory personnel.

Estimated annual number of respondents: 525.

Estimated annual number of responses per respondent: 2.

Estimated annual number of responses: 1,302.

Estimated total annual burden on respondents: 5,652 hours. (Due to averaging, the total annual burden hours may not equal the product of the annual number of responses multiplied by the reporting burden per response.)

A copy of the information collection may be viewed on the Regulations.gov website or in our reading room. (A link to Regulations.gov and information on the location and hours of the reading room are provided under the heading ADDRESSES at the beginning of this proposed rule.) Information about the information collection process may be obtained from Mr. Joseph Moxey, APHIS' Paperwork Reduction Act Coordinator, at (301) 851-2533. APHIS will respond to any ICR-related comments in the final rule. All comments will also become a matter of public record.

The Animal and Plant Health Inspection Service is committed to compliance with the E-Government Act to promote the use of the internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. The audit activities and appeals prescribed in this information collection must be in writing and may be transmitted by email.

For assistance with E-Government Act compliance related to this interim rule, please contact Mr. Joseph Moxey, APHIS' Paperwork Reduction Act Coordinator, at (301) 851-2533, or the Veterinary Service contact listed above under FOR FURTHER INFORMATION CONTACT .

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), the Office of Information and Regulatory Affairs determined that this rule does not meet the criteria set forth in 5 U.S.C. 804(2).

Accordingly, we are amending 9 CFR part 53 as follows:

We periodically issue regulations requiring changes in the labeling of food. If the compliance dates of these labeling changes were not coordinated, the cumulative economic impact on the food industry of having to respond separately to each change would be substantial. Therefore, we periodically have announced uniform compliance dates for new food labeling requirements (see, e.g., the Federal Register of October 19, 1984 (49 FR 41019); December 24, 1996 (61 FR 67710); December 27, 1996 (61 FR 68145); December 23, 1998 (63 FR 71015); November 20, 2000 (65 FR 69666); December 31, 2002 (67 FR 79851); December 21, 2006 (71 FR 76599); December 8, 2008 (73 FR 74349); December 15, 2010 (75 FR 78155); November 28, 2012 (77 FR 70885); December 10, 2014 (79 FR 73201); November 25, 2016 (81 FR 85156); December 20, 2018 (83 FR 65294); January 6, 2021 (86 FR 462); and January 3, 2023 (88 FR 6)). Use of a uniform compliance date provides for an orderly and economical industry adjustment to new labeling requirements by allowing sufficient lead time to plan for the use of existing label inventories and the development of new labeling materials.

We have determined under 21 CFR 25.30(k) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This final action contains no collections of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.

This action does not relate to existing requirements for compliance dates contained in final rules published before January 1, 2025. Therefore, the compliance dates for all final rules published by FDA in the Federal Register before January 1, 2025, will be the date stated in the respective final rule. We generally encourage industry to comply with new labeling regulations as quickly as feasible, however. Thus, when industry members voluntarily change their labels, it is appropriate that they incorporate any new requirements that have been published as final regulations up to that time.

In rulemaking that began with publication of a proposed rule on April 15, 1996 (61 FR 16422), and ended with a final rule on December 24, 1996 (61 FR 67710) (together “the 1996 rulemaking”), we provided notice and an opportunity for comment on the practice of establishing uniform compliance dates by issuance of a final rule announcing the date. We received no comments objecting to this practice during the 1996 rulemaking, nor have we received comments objecting to this practice since we last published a uniform compliance date final rule on January 3, 2023 (88 FR 6).

We find for good cause that notice and public procedure thereon are unnecessary because this action is uncontroversial and is consistent with FDA's past practice over many years. In this proceeding, FDA has identified a uniform compliance date that is approximately 3 years after the date of publication of this final action, consistent with past uniform compliance date rules. Moreover, interested parties will have an opportunity to comment on the compliance date for each individual food labeling regulation as part of the rulemaking process for that regulation. Consequently, FDA finds that notice and public procedure thereon are unnecessary for this final action. However, under 21 CFR 10.40(e)(1), we are providing an opportunity for comment on whether the uniform compliance date established by this final action should be modified or revoked.

In addition, we find good cause for this final action to become effective on the date of publication of this action. A delayed effective date is unnecessary in this case because this action does not impose any new regulatory requirements on affected parties. Instead, this final action provides affected parties with notice of our intent to identify January 1, 2028, as the compliance date for final food labeling regulations that require changes in the labeling of food products and that publish on or after January 1, 2025, and on or before December 31, 2026, unless special circumstances justify a different compliance date. Thus, affected parties do not need time to prepare before the rule takes effect. Therefore, we find good cause for this final action to become effective on the date of publication of this action.

The uniform compliance date is only relevant to final FDA food labeling regulations that require changes in the labeling of food products and that publish on or after January 1, 2025, and on or before December 31, 2026. All food products subject to the January 1, 2028, compliance date must comply with the appropriate regulations when initially introduced into interstate commerce on or after January 1, 2028. If any food labeling regulation involves special circumstances that justify a compliance date other than January 1, 2028, we will determine for that regulation an appropriate compliance date, which will be specified when the final regulation is published.

On February 14, 2023, HUD published the HOTMA final rule (88 FR 9600). The HOTMA final rule established a January 1, 2024, effective date for the revisions it made to HUD's income regulations at 24 CFR parts 5, 92, 93, 570, and 574. These revisions also affected CPD programs subject to 24 CFR parts 576 and 578, as well as Competitive Programs using NOFOs that reference the regulations at 24 CFR part 5. On September 29, 2023, HUD's Office of Public and Indian Housing (PIH) and Office of Housing (Housing) issued joint notification PIH 2023-27/H 2023-10, which enabled Public Housing Agencies (PHAs) and multifamily owners to establish their own compliance dates for sections 102 and 104 of HOTMA as early as January 1, 2024, and no later than January 1, 2025. Similarly, on December 8, 2023, HUD published the Housing Opportunity Through Modernization Act: Implementation of Sections 102, 103, and 104; Extension of Compliance Date (88 FR 85648) to extend the compliance date of the HOTMA final rule to January 1, 2025, for all CPD programs that use HUD's 24 CFR part 5 income regulations.

On September 18, 2024, PIH announced that PHAs were not to implement and comply with the section 102 and 104 income and assets provisions in the HOTMA final rule by January 1, 2025. This extension was due to delays in updating the HUD systems to comply with the rule. Then, on September 20, 2024, Housing issued notification H 2024-09 to announce that multifamily owners were not to implement and comply with the HOTMA final rule until July 1, 2025. This was also due to delays in updating the HUD systems to comply with the rule. Now, HUD has determined that CPD grantees receiving assistance through CPD programs, which often overlap with PIH and multifamily programs, must be provided with certain flexibilities. HUD is communicating these flexibilities through this document.

HUD's determination that these flexibilities are necessary was made in light of the fact that CPD grantees may not be able to comply with the requirements of the HOTMA final rule until after HUD has provided the guidance and performed the software updates necessary for CPD grantees to implement the HOTMA final rule. Even after the necessary guidance is provided and updates to HUD systems are made, CPD grantees will still need additional time to incorporate this guidance into their program policies and procedures and to update their own systems and software. Therefore, in recognition of these operational issues and challenges, HUD is allowing CPD grantees to set their own compliance dates for the applicable HOTMA final rule provisions. These compliance dates may be as early as January 1, 2024, and no later than January 1, 2026. Until these new compliance dates, CPD grantees must continue to adhere, as applicable, to the requirements found in both their program regulations and the regulations at 24 CFR 5.603, 24 CFR 5.609, 24 CFR 5.611, and 24 CFR 5.617 as they existed prior to January 1, 2024. Furthermore, CPD grantees must continue to rely on the instructions provided in the document published December 8, 2023 at 88 FR 85648 for implementing the HOTMA final rule.

The HOTMA final rule established an income safe harbor provision at 24 CFR 5.609(c)(3). This provision permits PHAs and multifamily owners to determine the annual income of a family prior to the application of any deductions applied in accordance with 24 CFR 5.611 based on income determinations made under the rules of other Federal programs or means-tested forms of Federal public assistance. On September 13, 2024, PIH published updated HOTMA Implementation FAQs  1 describing that PHAs may implement the safe harbor provision at 24 CFR 5.609(c)(3).

Now, HUD is allowing certain CPD grantees that have program regulations that cross reference 24 CFR 5.609(c)(3) to use this safe harbor provision prior to implementing the HOTMA final rule. Grantees of the following CPD programs may use this safe harbor provision: HOPWA (see 24 CFR 574.310(e)), ESG (see 24 CFR 576.401(c)), and the CoC programs (see 24 CFR 578.77(b) and (c)). Before using this safe harbor provision, grantees of these CPD programs must update their program guidelines and establish policies and procedures that describe income verifications when using this safe harbor provision. HUD is providing these grantees, and specifically HOPWA grantees, the ability to use this income safe harbor provision so that its CPD program guidance more closely aligns with its Section 8 program guidance, as HUD's HOPWA regulations closely track Housing Choice Voucher program regulations.

The HOTMA final rule also established separate safe harbor provisions at 24 CFR 92.203(a)(1) and (2) and at 24 CFR 92.252(h) for HOME and other safe harbor provisions at 24 CFR 93.151(a)(1) through (3), and 24 CFR 93.302(e) for HTF. Under 24 CFR 92.203(a)(1) and 24 CFR 93.151(a)(3), a participating jurisdiction or HTF grantee must accept a PHA's, owner's, or rental subsidy provider's income determinations, in accordance with 24 CFR 5.609, if a family is applying for or living in a HOME-assisted or HTF-assisted rental unit and the unit is being assisted by Federal project-based rental subsidy. Similarly, a participating jurisdiction or HTF grantee must accept a State project-based rental subsidy provider's income determination under the rules of that State program. In the same way, under 24 CFR 93.151(a)(1), for HTF-assisted units that are assisted under the public housing program, an HTF grantee must accept a PHA's determination of a family's annual income and adjusted income under 24 CFR 5.609 and 24 CFR 5.611. Moreover, under 24 CFR 92.203(a)(2) and 24 CFR 93.151(a)(2), a participating jurisdiction or HTF grantee may accept a Federal tenant-based rental assistance provider's income determinations if a family is applying for or living in a HOME-assisted or HTF-assisted rental unit and the family is being assisted by a Federal tenant-based rental assistance program.

Now, HUD is allowing participating jurisdictions and HTF grantees to use the safe harbor provisions in 24 CFR 92.203(a) and 24 CFR 92.252(h), or 24 CFR 93.151(a) and 24 CFR 93.302(e), prior to the new HOTMA final rule compliance date and upon publication of this document, even if they have not implemented the remaining provisions of the HOTMA final rule. Before using the safe harbor provisions, participating jurisdictions and HTF grantees must update their program guidelines and establish policies and procedures that describe income verification when using the safe harbor provisions. HUD is providing participating jurisdictions and HTF grantees the ability to use these safe harbor provisions so that its HOME and HTF guidance more closely aligns with its other HOTMA final rule implementation guidance and to reduce the administrative burden on CPD grantees associated with having to meet two different sets of income requirements for the same unit.

Accordingly, HUD extends the January 1, 2025, compliance date for implementing the changes made by the HOTMA final rule to 24 CFR parts 5, 92, 93, 570, and 574 for the CPD programs described in this document until January 1, 2026. Until January 1, 2026, the grantees of these programs subject to these parts may instead choose to comply with these parts as they existed prior to January 1, 2024, and may also implement the income safe harbor provisions described in this document.

The Coast Guard will enforce the safety zone regulations in 33 CFR 165.1191 for the event and location listed in table 1 to § 165.1191, item number 24, for the San Francisco New Year's Eve Fireworks Display from noon on December 31, 2024, through 12:45 a.m. on January 1, 2025. The Coast Guard will enforce a 100-foot safety zone around the fireworks barge during the loading, standby, transit, and arrival of the fireworks barge from the loading location to the display location and until the start of the fireworks display. On December 31, 2024, the fireworks barge will be loaded with pyrotechnics at Pier 64, Wharf 4 in San Francisco, CA, from approximately noon until approximately 6 p.m. The fireworks barge will remain on standby at the load location until their transit to the display location. From 10:45 p.m. to 11:15 p.m. on December 31, 2024, the loaded fireworks barge will transit from Pier 64, Wharf 4 to the launch site near the San Francisco Ferry Building in approximate position 37°47′45″ N, 122°23′15″ W (NAD 83), where they will remain until the conclusion of the fireworks display. At approximately 11:45 p.m. on December 31, 2024, 15-minutes prior to the fireworks display, the safety zone will expand to encompass all navigable waters, from surface to bottom, within a circle formed by connecting all points 1,000 feet out from the fireworks barge. The fireworks barge will be near the San Francisco Ferry Building in San Francisco, CA, in approximate position 37°47′45″ N, 122°23′15″ W (NAD 83) as set forth in 33 CFR 165.1191, table 1, item number 24. The safety zone will be enforced until 12:45 a.m. on January 1, 2025, or as announced via Broadcast Notice to Mariners.

In addition to this notification in the Federal Register , the Coast Guard plans to provide notification of the safety zone and its enforcement period via the Local Notice to Mariners.

Under the provisions of 33 CFR 165.1191, unauthorized persons or vessels are prohibited from entering into, transiting through, or anchoring within the safety zone during all applicable effective dates and times, unless authorized to do so by the Patrol Commander or other Official Patrol, defined as a Federal, State, or local law enforcement agency on scene to assist the Coast Guard in enforcing the regulated area. Additionally, each person who receives notice of a lawful order or direction issued by the Patrol Commander or Official Patrol shall obey the order or direction. The Patrol Commander or Official Patrol may, upon request, allow the transit of commercial vessels through the regulated areas when it is safe to do so.

If the Captain of the Port determines that the regulated area need not be enforced for the full duration stated in this notification, a Broadcast Notice to Mariners may be used to grant general permission to enter the regulated area.

The Coast Guard will enforce the safety zone regulations in 33 CFR 165.1191 for the event and location listed in table 1 to § 165.1191, item number 25, for the Sacramento New Year's Eve Fireworks Display from 8:45 p.m. until 9:20 p.m. on December 31, 2024. The Coast Guard will enforce a 700-foot safety zone around the shore-based launch location near the Tower Bridge at approximate position 38°34′58.1″ N, 121°30′24.8″ W (NAD 83) beginning 15-minutes prior to the 5-minute fireworks display. The safety zone will be enforced until 9:20 p.m. on December 31, 2024, 15-minutes following the conclusion of the fireworks display.

In addition to this notification in the Federal Register , the Coast Guard plans to provide notification of the safety zone and its enforcement period via the Local Notice to Mariners.

Under the provision of 33 CFR 165.1191, unauthorized persons or vessels are prohibited from entering into, transiting through, or anchoring within the safety zone during all applicable effective dates and times, unless authorized to do so by the Patrol Commander or other Official Patrol, defined as a Federal, State, or local law enforcement agency on scene to assist the Coast Guard in enforcing the regulated area. Additionally, each person who received notice of a lawful order or direction issued by the Patrol Commander or Official Patrol shall obey the order or direction. The Patrol Commander or Official Patrol may, upon request, allow the transit or commercial vessels through the regulated area when it is safe to do so.

If the Captain of the Port determines that the regulated area need not be enforced for the full duration stated in this notification, a Broadcast Notice to Mariners may be used to grant general permission to enter the regulated area.

On July 10, 2023, the Department published in the Federal Register a final rule amending regulations related to income-driven repayment (88 FR 43820). Those final regulations contained a technical error, which we are correcting. Specifically, with respect to 34 CFR 685.209(k)(6)(i), we indicated in the preamble to the final rule in a response to public comment that we were modifying the regulations to exclude periods in which a borrower is in an in-school deferment from counting toward the borrower's time to forgiveness, and we explained our reasons for doing so, see, e.g., 88 FR 43855, but we inadvertently omitted that change in the regulatory text. This notice corrects that inadvertent omission.

In accordance with the Administrative Procedure Act (APA), 5 U.S.C. 553, the Department generally offers interested parties the opportunity to comment on proposed regulations. However, the APA provides that an agency is not required to conduct notice-and-comment rulemaking when the agency, for good cause, finds that notice and public comment thereon are impracticable, unnecessary, or contrary to the public interest (5 U.S.C. 553(b)). There is good cause to waive rulemaking here as unnecessary.

Rulemaking is “unnecessary” in those situations in which “the administrative rule is a routine determination, insignificant in nature and impact, and inconsequential to the industry and to the public.” Utility Solid Waste Activities Group v. EPA, 236 F.3d 749, 755 (D.C. Cir. 2001), quoting U.S. Department of Justice, Attorney General's Manual on the Administrative Procedure Act 31 (1947) and South Carolina v. Block, 558 F. Supp. 1004, 1016 (D.S.C. 1983). The regulatory change in this document is necessary to properly and accurately reflect the outcome of the rulemaking process, by correcting a technical error: regulatory text that was proposed and explained but inadvertently was omitted from the final regulatory text. It reflects the substantive rule stated in the preamble, which was the product of the notice and comment process and does not establish any new substantive rule. Therefore, the Department has determined that publication of a proposed rule is unnecessary under 5 U.S.C. 553(b).

In addition, under section 492 of the Higher Education Act of 1965, as amended (HEA) (20 U.S.C. 1098a), all regulations proposed by the Department for programs authorized under title IV of the HEA are subject to negotiated rulemaking requirements. Section 492(b)(2) of the HEA provides that negotiated rulemaking may be waived for good cause when doing so would be “impracticable, unnecessary, or contrary to the public interest.” There is likewise good cause to waive the negotiated rulemaking requirement in this case, since, as explained above, notice and comment rulemaking is unnecessary and has already been conducted.

The APA generally requires that regulations be published at least 30 days before their effective date, unless the agency has good cause to implement its regulations sooner (5 U.S.C. 553(d)(3)). As previously stated, because the regulatory change corrects an error, there is good cause to waive the delayed effective date in the APA and make the correction effective as of the date of publication.

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

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

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

Accordingly, the Secretary corrects 34 CFR part 685 by making the following correcting amendment:

On August 12, 2024, VA published a proposed rule in the Federal Register (89 FR 65572) that would align VLGP regulations with regulatory updates to the uniform requirements for Federal awards in 2 CFR part 200 and make additional revisions to improve the process for administration of the grant program. The public comment period ended on October 11, 2024, and VA received 1 comment in response to the proposed rule.

The commenter expressed support for the VLGP and noted that the updates to the regulations would ensure clarity and compliance, provide grant recipients with additional flexibility to meet reporting requirements, and improve the program's overall effectiveness. VA appreciates the commenter's support and feedback. VA makes no changes to the rulemaking based on this comment.

Executive Order 12866 (Regulatory Planning and Review) directs agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 14094 (Executive Order on Modernizing Regulatory Review) supplements and reaffirms the principles, structures, and definitions governing contemporary regulatory review established in Executive Order 12866 of September 30, 1993 (Regulatory Planning and Review), and Executive Order 13563 of January 18, 2011 (Improving Regulation and Regulatory Review). The Office of Information and Regulatory Affairs has determined that this rulemaking is not a significant regulatory action under Executive Order 12866, as amended by Executive Order 14094. The Regulatory Impact Analysis associated with this rulemaking can be found as a supporting document at www.regulations.gov.

The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601-612). Amendments in the final rule will likely not be determinative of whether small entities receive or do not receive a grant because they will have limited impact on small entities complying with grant application and reporting requirements. In addition to some technical revisions to the VLGP regulations, this rule will merely align those regulations to updates to the uniform administrative requirements and other requirements for Federal awards (2 CFR part 200). Therefore, pursuant to 5 U.S.C. 605(b), the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply.

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

Although this final rule contains collection of information under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521), there are no provisions associated with this rulemaking constituting any new collection of information or any revisions to the existing collection of information. The collections of information for 38 CFR 38.730 are currently approved by the Office of Management and Budget (OMB) and have been assigned OMB control numbers 4040-0004, 4040-0006, 4040-0007, and 4040-0013.

The Assistance Listing number and title for the program affected by this document are 64.204, Veterans Legacy Grants Program.

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

Denis McDonough, Secretary of Veterans Affairs, signed and approved this document on December 20, 2024, and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs.

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

Shape-based mail and package processing is a fundamental premise of the Plant/Transportation Network Redesign underway in support of the 10-year Delivering For America plan. Deficiencies in the current labeling list framework offer the opportunity to align external (Commercial) mail preparation and entry as well as internal processing steps with a new shape-based approach to labeling lists.

In various sections, the DMM will continue to reference the AADC sort for labeling list L005 until a later date. Although the container label created using labeling list L005 will reflect SCF destination, mailpieces will receive SCF pricing as per the postage statement, when applicable.

The Postal Service will extend mailers a grace period for compliance with the labeling list changes until April 1, 2025. From April 2 through May 31, 2025, mailers must request an exception from PCSC to use data from the eliminated labeling lists. Files and data for the eliminated labeling lists will no longer be available after 5/31/25.

The Postal Service believes that this change will provide numerous benefits to mailers by deleting redundant lists, aligning existing lists, and synchronizing commercial mail preparation and entry with the opening of new USPS processing/entry points (with fewer errors and re-work).

The Postal Service adopts the described changes to Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM), incorporated by reference in the Code of Federal Regulations.

We will publish an appropriate amendment to 39 CFR part 111 to reflect these changes.

Accordingly, the Postal Service amends Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM), incorporated by reference in the Code of Federal Regulations as follows (see 39 CFR 111.1):

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

On February 12, 2024 (89 FR 9813), the EPA proposed to approve the following rule into the California SIP.

We proposed to approve this rule because we determined that it complies with the relevant CAA requirements. Our proposed action contains more information on the rule and our evaluation.

The EPA's proposed action provided a 30-day public comment period. During this period, we received five comments. Three of these comments were supportive of our proposed action, one was not germane to the action, and one stated that the rule submittal is not approvable. All the comments can be found in the docket for this rulemaking. We thank the commenters for their input. One of these commenters in support of the proposed action asked why there was no mention of California and COVID-19. FRAQMD Rule 7.15 was adopted and submitted to address the CAA section 185 fee program for Federal ozone nonattainment areas. Because COVID-19 does not bear on whether or not the submitted rule fulfills the requirements of section 185 of the CAA, we do not consider COVID-19 relevant to this rulemaking.

The comment in opposition to our proposed action was submitted from Air Law for All, Ltd., on behalf of the Center for Biological Diversity (the commenter from here on referred to as “ALFA” or “the commenter”). We have summarized below the substance of the comments from ALFA, identifying discrete points made by the commenter, and responding to each in turn.

Before responding to the issues raised by the commenter, we will first correct two factual misstatements in the comment letter. In the Background section of ALFA's comment letter, the commenter states that “In 2012, EPA determined that the area had met the 1-hour standards by the applicable attainment date for those standards.” The reference cited was an EPA action on October 18, 2012 (77 FR 64036). In that action, the EPA determined that complete, quality-assured, and certified air quality data for the Sacramento Metro 1-hour ozone nonattainment area show continuous attainment for the 1-hour ozone national ambient air quality standards (NAAQS) since 2009. We would like to clarify that this clean data finding was not a determination that the area had attained the NAAQS by the applicable attainment date, but instead a finding that the area had achieved attaining levels of air quality for the 2009-2011 period, which was after the applicable attainment date. The commenter also incorrectly stated, “For the 2008 8-hour standards, the applicable attainment date is December 31, 2027.” The applicable attainment date for the Sacramento Metro ozone nonattainment area for the 2008 8-hour ozone NAAQS is July 20, 2027. See 40 CFR 51.1103(a) Table 1, 77 FR 30160 (May 21, 2012) and 80 FR 12264 (March 6, 2015).

Comment #1: The commenter states that the EPA has not carried out its duty to determine whether the Sacramento Metro nonattainment area has attained the 1997 8-hour NAAQS by the June 15, 2019 attainment date. The commenter states that “[t]his information is germane to EPA's action, as the failure to attain would trigger the ozone fee requirement, for which the public and the regulated community must receive notice.” Therefore, the commenter claims that “EPA's proposal notice is insufficient, because it gives no notice of the legal consequences of EPA's approval.”

Response #1: It is not clear in what manner the commenter is alleging that the proposal notice is insufficient regarding the lack of notice of the “legal consequences” of the EPA's approval. As an initial matter, the commenter is correct that, as of the time of this action, the EPA has not made a determination as to whether the Sacramento Metro ozone nonattainment area attained the 1997 8-hour ozone NAAQS by the applicable attainment date. The commenter appears to be asserting that the approvability of a CAA section 185 rule submission depends in some way on whether or not the EPA has made such a finding, and because the EPA has not yet done so, the proposed rule did not sufficiently detail the legal consequences of approving Rule 7.15 into the SIP. The approvability of a section 185 rule submission does not depend on whether or not the EPA has previously made a finding that the area has failed to attain the relevant NAAQS. In some instances, the EPA has approved section 185 programs after making a finding that the area has failed to attain by the applicable attainment date. 1 In other instances, the EPA has approved a section 185 program prior to determining whether an area has attained the standard by the applicable attainment date. 2 The legal consequences of approving FRAQMD Rule 7.15 into the SIP are clear. Rule 7.15 section C.1 provides that fees will be assessed for emissions in the previous calendar year, beginning the year after the effective date of an EPA finding published in the Federal Register that the area has not attained an ozone NAAQS by the attainment date. The fact that the EPA has not made such a finding at the time the rule was adopted, submitted, or approved into the SIP is not relevant to the approvability of Rule 7.15. If the EPA in a future rulemaking proposes to find that the area failed to attain the 1997 ozone NAAQS by the applicable attainment date, or that it did attain the 1997 ozone NAAQS by the applicable attainment date, such finding would itself be subject to notice and comment via a separate Federal Register notice at that time. Should the EPA finalize a finding that the area failed to attain by the applicable attainment date, then pursuant to Rule 7.15 section C.1, fees would be assessed for emissions in the previous calendar year. Accordingly, the EPA disagrees with the commenters' assertion that the EPA's notice does not give sufficient notice of the legal consequences of approving Rule 7.15 into the California SIP.

Comment #2: The commenter claims that ozone emission fees are imposed upon a nonattainment area's failure to attain an ozone NAAQS, regardless of the timing of an EPA determination that the area failed to attain. The commenter states that CAA section 185(a) provides that emission fees must be paid for “each calendar year beginning after the attainment date, until the area is redesignated as an attainment area for ozone.” Thus, the commenter specifically objects to the language in FRAQMD Rule 7.15 section C.1 that states, “beginning in the year after the effective date of a final determination published in the Federal Register that the area has not attained the standard by the attainment date, the Air Pollution Control Officer shall assess the Clean Air Act Fees for emissions in the previous calendar year.” The commenter claims that even though the EPA is overdue in making a determination that the Sacramento Metro ozone nonattainment area failed to attain the 1997 ozone NAAQS, CAA section 185(a) requires fees to be collected for the years 2020, 2021, 2022, and 2023.

Response #2: The EPA notes as an initial matter that there are no major stationary sources in the portion of the Sacramento Metro ozone nonattainment area regulated by the FRAQMD, nor have there been at any point since the 2005 attainment date for the 1-hour ozone NAAQS. 3 Thus, there were no sources in the area subject to the rule in the years 2020, 2021, 2022, and 2023, and the commenter's statement that the rule must require fees be collected for those years is without any practical import because no fees would be owed or collected in any case. Notwithstanding this fact, the EPA acknowledges that the hypothetical scenario raised by the commenter could potentially become relevant if all of the three following conditions were met: (1) the Sacramento Metro nonattainment area failed to attain a particular ozone NAAQS by the applicable attainment date for that NAAQS, (2) the EPA finalized a finding of failure to attain for that NAAQS two or more calendar years following the attainment year for that NAAQS, and (3) a new major stationary source had begun operating in the portion of the Sacramento Metro ozone nonattainment area regulated by the FRAQMD prior to the year in which the EPA issued its finding of failure to attain. 4 In that hypothetical scenario, Rule 7.15 would require such a source to begin paying fees in the year following the effective date of the EPA's finding of failure to attain for emissions in the previous calendar year (that is, for emissions occurring in the calendar year of the effective date of the EPA's finding of failure to attain), but not for any emissions in prior years.

The EPA has not established a comprehensive approach to section 185 fees that may be due retroactively for emissions in years prior to the EPA issuing a finding of failure to attain. The EPA does not believe that the present rulemaking, for which the question is only theoretical and for which there are no identifiable parties at interest, is the proper forum for establishing a position on section 185 fees that may be due retroactively. The EPA believes that addressing this question in a future notice and comment rulemaking would provide a more appropriate forum for a range of impacted parties to provide input on this question. We do not believe that the hypothetical scenario above precludes our approval of Rule 7.15, which will require fees be paid by any potential future major stationary sources for all ozone NAAQS. Even if that hypothetical scenario comes to pass for a particular NAAQS in the future, the EPA could address any potential deficiencies under its section 185(d) authority (which is discussed in further detail in the response to Comment #4). As a result, the EPA finds that the timing of the rule's applicability provisions does not preclude our final approval of Rule 7.15.

Comment #3: The commenter claims that “an emissions fee program must collect separate emissions fees for each ozone standard for which an area is classified as Severe or Extreme.” The commenter further states, “For the Feather River rule to be fully approvable, it must make clear that two separate fees are to be paid if the area fails to attain both standards. In addition, the baseline appropriate for each particular standard must be used for each fee. However, the rule text does not explicitly address this requirement.”

Response #3: The EPA agrees with the commenter's claim that CAA section 185 fees must be calculated and collected separately for each ozone NAAQS. However, the EPA disagrees with the commenter's claim that Rule 7.15 is not sufficiently clear on this point, because Rule 7.15 does require fees to be calculated and paid for each applicable standard. As stated in the FRAQMD staff report for Rule 7.15, the rule was amended to include the 8-hour ozone standards because the originally adopted version of the rule only applied to the 1-hour ozone standard. The staff report says, “The amendments would apply to the existing 8-hour standards that were amended in 1997, 2008, and 2015 and any future 8-hour standards.”

Additionally, the rule itself in sections A.2 and A.4 refers to multiple standards. When discussing the cessation of fees, section A.4 states that fees “for any ozone standard will cease on the effective date of the United States Environmental Protection Agency final action redesignating the nonattainment area to attainment for that standard” (italics added), which indicates that the fee obligation would continue for each other applicable NAAQS for which the area is still designated nonattainment and classified as Severe or Extreme. The rule's definition for the term “Attainment Year” in section B.1 also refers to multiple standards, which is consistent with the conclusion that the rule addresses the CAA section 185 fee requirement for each individual standard. Although the EPA notes that the rule language could be more explicit to state that the fees for each individual NAAQS are assessed separately, we conclude that the rule is sufficiently clear on this point.

Comment #4: The commenter states that “EPA must immediately promulgate procedures for collecting emissions fees.” The commenter claims that the EPA has an independent obligation under CAA section 185(d) to promulgate these procedures regardless of whether a federal implementation plan obligation is triggered. The commenter also claims that CAA “section 185(d) requires the EPA to collect `unpaid fees' if the state has not done so.” Additionally, the commenter states that the EPA has a “mandatory duty” under the Act to collect section 185 fees for “the Sacramento metropolitan ozone area for the years 2020 through 2023, and possibly other nonattainment areas as well.” The commenter also notes that “section 301(a) of the Act requires EPA to promulgate procedures ensuring `fairness and uniformity' in implementing and enforcing the Act across EPA's regional offices” and suggests that “a uniform set of procedures for collections of emissions fees” is the best approach to do so.

Response #4: The issues raised in this comment are outside the scope of the current rulemaking. Section 185(d) provides in part:

“If the Administrator has found that the fee provisions of the implementation plan do not meet the requirements of this section, or if the Administrator makes a finding that the State is not administering and enforcing the fee required under this section, the Administrator shall, in addition to any other action authorized under this subchapter, collect, in accordance with procedures promulgated by the Administrator, the unpaid fees required under subsection (a) of this section.”

According to this provision, the EPA shall collect “unpaid fees” required under subsection (a) if either (1) the Administrator has found that the fee provisions of the SIP do not meet the requirements of section 185, or (2) the Administrator makes a finding that the State is not administering and enforcing the section 185 fee obligation. As explained in the response to Comment #2, there are currently no major stationary sources in the area regulated by Rule 7.15, nor were there any major stationary sources in the applicable area in the years 2020 through 2023. As a result, there are no “unpaid fees” for the EPA to collect in the area at issue in this rulemaking. Should the EPA in the future make either of the above-enumerated findings, and outstanding unpaid fees exist at that time, the EPA could at that time exercise its authority under section 185(d) to collect such fees. However, the EPA is under no obligation to promulgate procedures for doing so in the FRAQMD at this time, nor are the EPA's potential obligations under section 185(d) relevant to the approvability of Rule 7.15. Additionally, any potential section 185 fee obligations for areas outside of the FRAQMD have no relevance to the approvability of the present rule submission from the FRAQMD.

Accordingly, the commenter's assertion that the EPA has a “mandatory duty” to collect fees for “the Sacramento metropolitan ozone area for the years 2020 through 2023, and possibly other nonattainment areas as well” is outside the scope of this action.

With respect to the commenter's statement that the section 301(a) requirement for “fairness and uniformity” in the criteria, procedures, and policies applied by the regional offices suggests that “a uniform set of procedures for collections of emissions fees” is the best approach, this is also outside the scope of the current rulemaking. As noted, the EPA does not have any duty to exercise its section 185(d) authority in the FRAQMD at this time.

No comments were submitted that change our assessment of the rule as described in our proposed action. Therefore, as authorized in section 110(k)(3) of the Act, the EPA is approving FRAQMD Rule 7.15 into the California SIP. This final approval action also removes the EPA's obligation to promulgate a Federal Implementation Plan (FIP) for the FRAQMD portion of the Sacramento Metro ozone nonattainment area by permanently stopping the FIP clock associated with the January 5, 2010 (75 FR 232) finding of failure to submit. 5

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of FRAQMD Rule 7.15, “Clean Air Act Nonattainment Fees,” amended on April 4, 2022, which addresses the CAA section 185 fee program requirements. The EPA has made, and will continue to make, these documents available through www.regulations.gov and at the EPA Region IX Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

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

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

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

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

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

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

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

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

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

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 minority populations and low-income populations to the greatest extent practicable and permitted by law. Executive Order 14096 (Revitalizing Our Nation's Commitment to Environmental Justice for All, 88 FR 25251, April 26, 2023) builds on and supplements E.O. 12898 and defines environmental justice (EJ) as, among other things, “the just treatment and meaningful involvement of all people, regardless of income, race, color, national origin, Tribal affiliation, or disability, in agency decision-making and other Federal activities that affect human health and the environment.”

The State did not evaluate EJ considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. The EPA did not perform an EJ analysis and did not consider EJ in this action. 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 Executive Orders 12898 and 14096 of achieving EJ for communities with EJ concerns.

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 3, 2025. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

For the reasons stated in the preamble, the Environmental Protection Agency amends part 52, chapter I, title 40 of the Code of Federal Regulations as follows:

Comments should be specific, address issues raised by the rule, and explain reasons for any objections or recommended changes. This rule will be effective on the date shown in the DATES section unless OCSS receives significant adverse comment on or before the deadline for comments. Significant adverse comments are comments that provide strong justifications for why the rule should not be adopted or for changing the rule. OCSS does not expect to receive any significant adverse comments because it is adopting the name change already announced in the Federal Register and making technical updates to 45 CFR part 309. If OCSS receives any significant adverse comments, it will publish a document in the Federal Register withdrawing this rule before the effective date. Although we will not acknowledge receipt of individual comments, we will review and consider all comments that are relevant and received during the comment period. We will respond to these comments in the withdrawal if the rule is withdrawn. If OCSS receives no significant adverse comments, the rule will be effective 60 days after publication without further notice.

This DFR is published under the authority granted to the Secretary of Health and Human Services by section 1102 of the Social Security Act (the Act) (42 U.S.C. 1302). Section 1102 of the Act authorizes the Secretary to publish regulations, not inconsistent with the Act, as may be necessary to the efficient administration of the functions with which the Secretary is responsible under the Act. This DFR is also authorized by section 452(a) of the Act (42 U.S.C. 652(a)), which gives the Secretary of HHS the statutory authority to change the name of the child support program.

This DFR is further published in accordance with section 455(f) of the Act (42 U.S.C. 655(f)) which authorizes the Secretary to make child support funding available to Tribes and Tribal organizations operating child support programs and to issue regulations establishing requirements for Tribal child support programs.

In 1975, Congress established the child support program under title IV-D of the Social Security Act (Pub. L. 93-647). The child support program is administered at the federal level by the Office of Child Support Enforcement (OCSE) and functions in 54 states and territories and over 60 Tribes. When the child support program began, its primary focus was collecting child support to recover welfare costs, but that has changed significantly over time. Today, the program is focused on delivering family-centered child support services that improve the long-term financial and emotional support of children, by collecting and facilitating consistent child support payments based on noncustodial parents' ability to pay. This evolution has been guided by the changing needs of families, by Federal legislation, and by research and data that contribute to OCSE's understanding of the standards and requirements necessary to establish an effective child support program.

On June 5, 2023, ACF published a notice in the Federal Register , 88 FR 36587, 1 updating the office's Statement of Organization, Functions, and Delegations of Authority to announce that the Office of Child Support Enforcement is now the Office of Child Support Services. This name change reflects the program's commitment to serve the whole family and provide services that promote family self-sufficiency, so children receive reliable support from both parents.

On February 12, 2024, ACF published a final rule in the Federal Register , 89 FR 9784, 2 to announce the Elimination of the Tribal Non-Federal Share Requirement. The final rule provided additional support to Tribes to administer their Tribal IV-D programs, however, a few changes are required in related regulations in 45 CFR 309.75(e) to align with the final rule. Additionally, as the Tribal IV-D program continues to evolve, updated Tribal processes and reporting necessitate updates to 45 CFR part 309.

The purpose of this rule is to change the name of the child support program in 45 CFR chapter III, parts 301 through 310, and make required technical updates to 45 CFR part 309. The name of the child support program was changed from OCSE to OCSS on June 5, 2023. However, all child support regulations throughout 45 CFR chapter III refer to the child support program as OCSE. OCSS needs to change all references to the child support program in 45 CFR chapter III from OCSE to OCSS to align with the name change of the child support program.

Additionally, technical updates are required to remove paragraphs one through four in 45 CFR 309.75(e) for alignment with the Elimination of the Tribal Non-Federal Share Requirement final rule. Technical updates are also required to align § 309.130(a)(2) with OCSS's current process for making awards, and to align §§ 309.20(b), 309.130(b)(3), 309.135(d), 309.160, and 309.170(b) introductory text, (b)(1), (2), and (7), and (c) with updated Tribal IV-D reporting, including Office of Management and Budget (OMB) approved data collection forms, and to allow for Tribal IV-D program applications to be submitted electronically.

The following is a summary of the regulatory provisions included in this direct final rule and, where appropriate, how these provisions differ from the provisions currently reflected in 45 CFR chapter III.

The final rule makes a nomenclature change, to remove the name “Office of Child Support Enforcement” wherever it appears throughout 45 CFR chapter III, within titles, images, sections, and paragraphs, and replace it with the name “Office of Child Support Services”. This name change promotes family self-sufficiency, emphasizing the need for children to receive reliable support from both parents.

The term “Office of Child Support Enforcement” is replaced with “Office of Child Support Services” in 45 CFR chapter III as shown in the following table:

The final rule makes a nomenclature change, to remove the acronym “OCSE” wherever it appears throughout 45 CFR chapter III, within titles, images, sections, and paragraphs, and replace it with the acronym “OCSS”. This acronym change supports the name change to Office of Child Support Services that recognizes the program's commitment to serve the whole family and provide services that promote family self-sufficiency.

The acronym “OCSE” is replaced with acronym “OCSS” in 45 CFR chapter III as shown in the following table:

In addition to changing the name of the “Office of Child Support Enforcement” to the “Office of Child Support Services” and changing the related acronym from “OCSE” to “OCSS,” this direct final rule removes the word “enforcement” where it is unnecessary or changes the word “enforcement” to the word “services” or the word “program” as appropriate. These changes acknowledge and reflect the name change and the broader scope of services the child support program provides to families. The changed provisions are §§ 301.1, 301.13, 302.19(a), 302.30, 302.70(d)(2), 302.75(b)(6), 302.85(b)(2)(ii), 303.2(a)(3), 303.5(g)(ii)(B), 304.11, 304.20(b) introductory text, (b)(1) introductory text, (b)(1)(iii), and (b)(12), 304.23(i), 304.24, 304.30, 305.1(d), 305.35(e), 307.1(h)(1), 307.5(c)(3), 309.01(a), 309.05, 309.10(c), 309.55, 309.130(a)(1), (b)(4), and (c)(2), and 309.170(a).

This direct final rule also changes the word “insure” to the word “ensure” in § 302.19(a), and it adds the word “child” to clarify “support services” and removes the word “enforcement” in the heading and the body of § 302.30.

Section 309.20(b) requires Tribes or Tribal organizations submitting an initial application for funding under § 309.65(a) to mail the application to OCSS, with a copy to the appropriate regional office. This rule amends that requirement by revising paragraph (b) to allow applications to be submitted via email to OCSS.Tribal@acf.hhs.gov.

Prior to the elimination of the Tribal non-Federal share requirement, § 309.75(e) described the requirements for a Tribe and Tribal organization that intends to charge an application fee or recover costs in excess of the fee. Collected fees and recovered costs are considered program income and deducted from total allowable costs in accordance with 45 CFR 75.307(e)(1). When we proposed eliminating the Tribal non-Federal share requirement, we also proposed revising § 309.75(e) to require Tribal child support programs to have procedures that prohibit charging fees and recovering costs and to remove paragraphs (e)(1) through (4). 3 There were no objections to the proposed regulatory amendments and the amended language was incorporated in the final rule. 4 However, when the revisions to § 309.75(e) were codified in the CFR, paragraphs (e)(1) through (4) were inadvertently retained. This rule effectuates that conforming change by removing paragraphs (e)(1) through (4).

Section 309.130(a)(2) provides that Tribes and Tribal organizations eligible for grants of less than $1 million per 12-month funding period will receive a single annual award, while those eligible for grants of $1 million or more per 12-month funding period will receive four equal quarterly awards. In practice, all Tribes and Tribal organizations receive a single annual award regardless of the funded amount. This rule makes a technical correction to § 309.130(a)(2) by revising the paragraph to align with OCSS's current process for making awards.

Tribes and Tribal organizations are required under § 309.130(b)(3) to submit a final SF 425, “Federal Financial Report,” within 90 days after the end of the fourth quarter of both the funding and liquidation periods. This timeframe is more restrictive than the OMB modified closeout provisions at 2 CFR 200.344, which allow 120 days for the submission of non-Federal entity closeout reports. In 2023, HHS began following 2 CFR 200.344. As explained in the published Change in Federal Award Closeout Provisions notice, 5 “[a]dhering to the 2 CFR 200.344 closeout provisions would provide more time for recipient compliance and conform with other Federal awarding agencies, thus promoting greater equity and fairness.” For these same reasons, this rule amends § 309.130(b)(3) by removing the number “90” and adding, in its place, the number “120” to align with 2 CFR 200.344.

Section 309.135(d) requires that a Tribe or Tribal organization use Form SF 269A to report quarterly on the amount of Federal title IV-D grant funds that have been obligated and liquidated and the amounts that remain unobligated and unliquidated at the end of each fiscal quarter during the obligation and liquidation periods. Form SF 269A is now known as the SF 425, “Federal Financial Report.” This rule makes a technical correction to the citation by removing the number “269A” and adding, in its place, the number “425”.

The OCSS-75 Tribal Annual Data Report is used to report program status and accomplishments according to § 309.170(b). In 2021, form OCSS-75 was revised through a joint workgroup with Tribal child support directors and provided to all Tribal child support directors for review and feedback, in addition to being made available for public comment in compliance with the requirements of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995. As such, this rule updates § 309.170 to conform to the revised OCSS-75 Tribal Annual Data Report, 6 which was implemented beginning Fiscal Year 2023.

Section 309.170(b) and (c) make a general reference to the submission of Tribal IV-D program statistical and narrative reports. This rule amends both citations to reference the Tribal Annual Data Report (OCSS-75) more specifically by adding the text “on the Tribal Annual Data Report (OCSS-75)” to paragraph (b) and removing the text “Tribal IV-D program statistical and narrative reports” from paragraph (c) and adding, in its place, the text “the Tribal Annual Data Report (OCSS-75)”.

Section 309.170(b)(1) is amended to add the addition of new Tribal reporting criteria on Line 2A of the OCSS-75 report, “Total Number of Tribal Cases Open at Any Time During the Fiscal Year”.

Section 309.170(b)(2) is amended to reflect revised OCSS-75 data reporting requirements for paternity establishment. Requirements to report out-of-wedlock births in the previous year and paternities established or acknowledged are revised to reflect updated requirements to report the total number of children in cases open at any time during the fiscal year and the total number of children with paternity concluded.

Section 309.170(b)(7) instructs Tribal child support programs to report total costs claimed. However, the OCSS-75 report does not collect data on total costs claimed. This rule removes paragraph (b)(7) accordingly and redesignates paragraph (b)(8) to paragraph (b)(7).

The effective date will be 60 days from the date of publication in the Federal Register .

No new information collection requirements are imposed by these regulations.

Executive Orders 12866, as amended by Executive Order 14094, and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule meets the standards of Executive Orders 12866, as amended by Executive Order 14094, and 13563 because it does not have an economic impact and it harmonizes the OCSS Name Change, the Elimination of the Tribal Non-Federal Share Requirement final rule, and Tribal IV-D regulations with current Tribal IV-D processes and reporting requirements. There is no financial impact to making these required technical updates.

The Secretary certifies that, under 5 U.S.C. 605(b), as enacted by the Regulatory Flexibility Act (Pub. L. 96-354), this rule will not result in a significant impact on a substantial number of small entities.

The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare an assessment of anticipated costs and benefits before issuing any rule that may result in an annual expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation). That threshold level is currently approximately $177 million. This rule does not impose any mandates on State, local, or Tribal governments, or the private sector, that will exceed this threshold in any year.

Section 654 of the Treasury and General Government Appropriations Act of 1999 requires Federal agencies to determine whether a proposed policy or regulation may affect family well-being. If the agency's determination is affirmative, then the agency must prepare an impact assessment addressing seven criteria specified in the law. We certify that we have assessed this rule's impact on the well-being of families. This rule will not affect family well-being.

This rule is not a major rule as defined in 5 U.S.C. chapter 8.

Executive Order 13132 prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial direct compliance costs on State and local governments and is not required by statute, or the rule preempts State law, unless the agency meets the consultation and funding requirements of section 6 of the Executive order. This rule does not have federalism impacts as defined in the Executive Order 13132.

Meg Sullivan, Principal Deputy Assistant Secretary for the Administration for Children and Families, performing the delegable duties of the Assistant Secretary for Children and Families, approved this document on December 10, 2024.

For the reasons stated in the preamble, the Department of Health and Human Services amends 45 CFR parts 301, 302, 303, 304, 305, 307, 308, 309, and 310 as set forth below:

FMCSA organizes this final rule as follows:

To view any documents mentioned as being available in the docket, go to https://www.regulations.gov/docket/FMCSA-2024-0280/document and choose the document to review. To view comments, click this final rule, then click “Browse Comments.” If you do not have access to the internet, you may view the docket online by visiting Dockets Operations on the ground floor of the DOT West Building, 1200 New Jersey Avenue SE, Washington, DC 20590-0001, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. To be sure someone is there to help you, please call (202) 366-9317 or (202) 366-9826 before visiting Dockets Operations.

FMCSA extends certain compliance dates in the 2023 final rule, “Broker and Freight Forwarder Financial Responsibility” (88 FR 78656, Nov. 16, 2023), from January 16, 2025, to January 16, 2026, creating a single compliance date for all provisions in the rule. This extension will ensure that parties required to comply with the regulations have sufficient opportunity to register in the new online registration system and begin using it, and that FMCSA is able to properly process and respond to such filings. The provisions affected by this extension are:

1. Immediate suspension of broker/freight forwarder operating authority. When a broker or freight forwarder's available financial security falls below $75,000, FMCSA shall suspend its operating authority registration.

2. Surety or trust responsibilities in cases of broker/freight forwarder financial failure or insolvency. If a surety/trustee becomes aware that a broker or freight forwarder is experiencing financial failure or insolvency, it must notify FMCSA and initiate cancellation of the financial responsibility.

3. Enforcement authority and penalties for financial responsibility providers who do not comply with the regulations. FMCSA is incorporating statutorily mandated penalties into its regulations. After notice and an opportunity for a hearing, surety companies or financial institutions who violate 49 CFR 387.307 will be ineligible to provide financial responsibility for 3 years and may also be subject to a civil penalty.

The extension of the compliance date is necessary so that FMCSA can make the new online registration system available to entities required to register and make filings in the system. This extension is also intended to provide users with an opportunity to begin using, and become familiar with, the new online registration system before compliance with the system becomes mandatory. The planned release for the new registration system is 2025.

The 2023 Broker and Freight Forwarder Financial Responsibility final regulatory impact analysis estimated costs for compliance and implementation among brokers, freight forwarders, surety bond and trust fund providers, and the Federal government. This rule delays certain provisions requiring filings in the new online registration system until January 16, 2026, resulting in all provisions of the rule becoming effective at the same time.

Despite the delayed compliance for certain provisions, FMCSA finds that the benefits stipulated in the 2023 final rule remain unchanged by this rule. The provision mandating that brokers and freight forwarders maintain assets readily available in trust funds, will still take effect as originally scheduled, on January 16, 2026.

As it pertains to the immediate suspension provision, in the 2023 final rule's Regulatory Impact Analysis, the Agency estimated that less than 0.5 percent of all brokers would have faced immediate suspension proceedings under the new requirements in 2025. FMCSA lacked the data to quantify the number of financial failures that will occur in any given year and would therefore trigger the surety or trust responsibilities in cases of brokers/freight forwarder financial failure or insolvency. However, the Agency believes that the number of determinations of financial failure or insolvency is already represented in the immediate suspension estimate. As the affected population is relatively small, the Agency believes that the impact of a delay is de minimis.

Brokers and freight forwarders, surety bond and trust fund providers may incur cost savings by not being required to file documentation relating to certain other provisions until January 16, 2026. FMCSA may also incur cost savings in delaying the enforcement of several provisions of the 2023 final rule. In conclusion, the Agency finds that the change in costs and benefits as a result of the extension would be de minimis for these entities.

The legal basis of the Broker and Freight Forwarder Financial Responsibility final rule, set forth at 88 FR 78658 (Nov. 16, 2023), also serves as the legal basis for this final rule. The statutory authority identified in that discussion is 49 U.S.C. 13906, which contains requirements for the financial security of brokers and freight forwarders and directs the Secretary to issue regulations to implement and enforce these requirements. Authority to carry out and enforce these provisions has been delegated to the Administrator of FMCSA (49 CFR 1.87(a)(5)).

As discussed in the November 16, 2023, final rule, 49 CFR 387.403T(c) makes any requirements applicable to broker of property surety bonds and trust funds in § 387.307 applicable to the surety bond or trust fund required of freight forwarders as well. 1 Therefore, any time this rule refers to brokers, the same requirements are also applicable to freight forwarders.

Unless stated otherwise, FMCSA generally considers provisions that are not inextricably intertwined to be severable, meaning that if any provision in a rule is later held to be invalid, the remainder of the rule is not affected (49 CFR 389.41). While many provisions of this rule are integrated and the Agency anticipates the rule will function most effectively with all provisions operating together, FMCSA nonetheless finds that each major provision of the rule is severable from the others and could operate functionally even in the event some provisions were deemed invalid. In the event a court were to invalidate one or more of this final rule's unique provisions, the remaining provisions should stand.

On November 16, 2023, FMCSA published a final rule adopting regulations to implement 49 U.S.C. 13906(b) and (c) (88 FR 78656). The final rule became effective 60 days later, on January 16, 2024. However, compliance with the provisions relating to immediate suspension, financial failure or insolvency, and penalties for trust or surety providers who fail to comply with the regulations is not required until January 16, 2025, and full compliance with all of the final rule's provisions is not required until 2 years after the effective date, beginning on January 16, 2026.

On November 4, 2024, FMCSA published a notice of proposed rulemaking (NPRM), proposing to extend the compliance deadlines for the provisions of the Broker and Freight Forwarder Financial Responsibility rule from January 16, 2025, to January 16, 2026. The affected provisions relate to immediate suspension, financial failure or insolvency, and penalties for trust or surety providers who fail to comply with the regulations., In addition, FMCSA proposed to amend the expiration date of the temporary rule governing current practices, § 387.307T, and the compliance dates in § 387.307. This extension would create a single compliance date for all provisions in the rule, allow FMCSA to implement the new online registration system for filers to use, and ensure that filers are familiar with the online registration system and able to perform all duties mandated by the rule prior to the compliance date.

The close of comments was initially set as November 19, 2024. The Small Business in Transportation Coalition (SBTC) requested an extension of the comment period, and FMCSA granted a 7-day reopening of the comment period on November 21, 2024, with the comment period closing on November 29, 2024 (89 FR 92084).

FMCSA received 13 comments on this proposed rule with nine opposing the extension of the compliance date, two supporting it, one requesting an extension to the comment period, and one out of scope comment. The National Owner Operators Association (NOOA), the Owner-Operator Independent Drivers Association (OOIDA), and seven individual commenters opposed delaying the compliance dates for the provisions outlined in the November 16, 2023, final rule. First Century Financial Corporation and one individual commenter supported delaying the effective date for certain provisions outlined in the November 2023 final rule. SBTC requested an extension of the comment period, which was granted. One commenter addressed broker transparency issues, which fall outside the scope of this rule.

NOOA commented that FMCSA has had sufficient lead time to either add to its existing infrastructure or accelerate development of the forthcoming online registration system. NOOA states that regulated entities have been anticipating the need to comply with the regulations, making the proposed delay excessive. NOOA also stated that FMCSA did not provide adequate justification for extending the compliance date, as it does not outline any significant challenges that regulated entities would face in using the system.

The proposed revised compliance dates are crucial to ensure the smooth transfer of vital data, requiring careful coordination to avoid disruptions for users. It also allows adequate time to finalize and thoroughly test the capabilities of the new online registration system, to ensure the system's stability and security. This timeframe also enables FMCSA to provide training and outreach to both internal staff and external stakeholders, supporting a more efficient transition and reducing potential difficulties for regulated entities who will use the new system.

FMCSA determined that implementing the new online registration system was a priority because of its wide-ranging impacts, given that it is intended to function as a clearinghouse and depository of information on, and identification of, all foreign and domestic motor carriers, brokers, and freight forwarders, and other entities required to register with the Department, as well as information on safety fitness and compliance with minimum levels of financial responsibility. Additionally, prioritizing rollout of the comprehensive online registration system aligns with statutory requirements for FMCSA to improve its information technology and data systems to ensure better oversight of motor carriers, drivers, and equipment, pursuant to section 103 of the ICC Termination Act of 1995 (Pub. L. 104-88, 109 Stat. 803, 888, Dec. 29, 1995) and subtitle C of title IV of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (Pub. L. 109-59, 119 Stat. 1144, 1761, Aug. 10, 2005). Building the functionality into the existing system would have required the Agency to divert critical resources away from development of the new online registration system and fulfillment of that statutory mandate.

NOOA commented that delaying compliance with these rules would disproportionately impact small operators, brokers, and freight forwarders, and that the industry relies on a streamlined process for transparency and operational efficiency and will be disadvantaged by the delay.

Michael Ravnitzky commented that the extension of the compliance date would have a positive impact on small businesses, as the burdens of compliance generally affect small businesses more than large ones. He stated that having additional time to comply would reduce small business burdens and facilitate a smoother transition to the new regulations.

FMCSA understands that this extension will provide cost savings for certain small businesses. By delaying the implementation of certain provisions, those small businesses will incur fewer expenses related to paperwork and regulatory compliance. The additional time provided by this extension will allow small businesses to better prepare for the implementation of all provisions, likely leading to increased compliance. However, FMCSA also recognizes that other small businesses, mainly motor carriers, would prefer the immediate suspension provisions to take effect as originally scheduled because of the deterrent effect on brokers who fail to pay carriers and continue to accrue claims. As described in the Costs and Benefits section, above, the Agency estimates this rule will affect less than 0.5 percent of property brokers each year, and the effects of delaying compliance will therefore not be substantial across the transportation industry.

FMCSA finds that without certain automated processes currently under development in the new online registration system, effective compliance management will be compromised. Specifically, the Agency believes that tracking and processing drawdown notifications manually will be inefficient, leading to delays, higher administrative costs, and potential compliance risks for both FMCSA and the industry. The ability to efficiently suspend the operating authority of brokers and freight forwarders who fail to maintain the required financial security within the 7-day regulatory time frame depends upon both the regulated entities and the Agency being able to utilize a fully functional online filing system. For more detailed information regarding the launching of the new online registration system, stakeholders are encouraged to visit https://www.fmcsa.dot.gov/registration/resources-hub.

In its comment, NOOA asserted that the training and familiarization period can be streamlined if FMCSA provides thoughtful, targeted training programs to circumvent the need to delay the compliance date. NOOA believes FMCSA has previously demonstrated its capacity to do so and requested that the Agency maintain its original compliance date of January 16, 2025.

FMCSA is committed to developing both general and audience-specific training materials to support users in navigating the new registration system effectively once it is rolled out and made available. This will include tailored guidance for different user groups to address specific filing needs and reduce any potential learning curve. FMCSA will continue to leverage feedback to refine these training programs, ensuring that they are comprehensive, accessible, and focused on facilitating a smooth transition for all users.

OOIDA submitted a comment noting that it had previously expressed skepticism in its December 2023 Petition for Reconsideration about the timeline provided for the URS rulemaking process to be completed before the January 2025 compliance date. OOIDA stressed that URS remains a work in progress and that historically there have been numerous problems associated with its rollout. Additionally, OOIDA raised the issue that there are no assurances that the online registration system will be completed by the new proposed compliance date. OOIDA requested that the Agency find alternative and/or temporary methods to support the January 2025 implementation date issued in the November 2023 final rule (88 FR 78656).

FMCSA is actively engaged in developing and preparing for rollout of the new registration system, with a planned rollout in 2025. Although FMCSA always planned to build the filing functionality necessary to implement this rule into the new system, the compliance dates were not specifically tied to the launch date for that system. FMCSA initially believed its existing systems could be used to accept the required filings. However, through its stakeholder engagement efforts, FMCSA determined that adding the filing functionality to its legacy systems for use in the interim would likely create confusion and additional training burdens for filers, who would be responsible for learning to use two different filing systems in quick succession. Doing so would also utilize FMCSA resources that are better directed toward implementing the new online registration system. Therefore, FMCSA determined that stakeholders would benefit from delaying the compliance date until after the planned rollout of the new online registration system.

FMCSA received one comment concerning issues beyond the scope of this rule, which related to a separate rulemaking on broker transparency. 2 FMCSA has moved this comment to the appropriate docket and will consider it in connection with that rulemaking.

The Administrative Procedure Act section 553 prescribes a 30-day waiting period between publication of a rule and the effective date of that rule. However, agencies may waive this waiting period for substantive rules which grant or recognize an exemption or relieve a restriction (5 U.S.C. 553(d)(1)). Here, FMCSA finds that the delay of an effective date of a substantive rule requirement is a substantive rule that relieves a restriction for a period of time, so making the rule effective immediately on publication is justified. FMCSA is balancing the benefit of requiring compliance as soon as is practicable with the burden on regulated entities, who are not yet required to comply with any of the provisions in the November 16, 2023, final rule, to perform the duties required. As the extension of the compliance date does not change the substance of any provisions of that rule, but merely provides regulated parties additional time to prepare, they would not be prejudiced if the change goes into effect immediately.

FMCSA has considered the impact of this final rule under E.O. 12866 (58 FR 51735, Oct. 4, 1993), Regulatory Planning and Review, as supplemented by E.O. 13563 (76 FR 3821, Jan. 21, 2011), Improving Regulation and Regulatory Review, and amended by E.O. 14094 (88 FR 21879, Apr. 11, 2023), Modernizing Regulatory Review, as well as the impact under DOT regulatory policies and procedures (DOT Order 2100.6A, June 7, 2021). This final rule is not a significant regulatory action under section 3(f) of E.O. 12866, as amended. Accordingly, the Office of Management and Budget (OMB) has not reviewed it under that E.O.

The 2023 Broker and Freight Forwarder Financial Responsibility final regulatory impact analysis estimated costs for compliance and implementation among brokers, freight forwarders, surety bond and trust fund providers, and the Federal government. This rule delays certain provisions requiring filings in the new online registration system until January 16, 2026, resulting in all provisions of the rule becoming effective at the same time.

Despite the delayed compliance for certain provisions, FMCSA finds that the benefits stipulated in the 2023 final rule remain unchanged by this rule. The provision mandating that brokers and freight forwarders maintain assets readily available in trust funds, will still take effect as originally scheduled, on January 16, 2026.

As it pertains to the immediate suspension provision, in the 2023 final rule's regulatory impact analysis, the Agency estimated that less than 0.5 percent of all brokers would have faced immediate suspension proceedings under the new requirements in 2025. FMCSA lacked the data to quantify the number of financial failures that will occur in any given year and would therefore trigger the surety or trust responsibilities in cases of brokers/freight forwarder financial failure or insolvency. However, the Agency believes that the number of determinations of financial failure or insolvency is already represented in the immediate suspension estimate. As the affected population is relatively small, the Agency believes that the impact of a delay is de minimis.

Brokers and freight forwarders, surety bond and trust fund providers may incur cost savings by not being required to file documentation relating to certain other provisions until January 16, 2026. FMCSA may also incur cost savings in delaying the enforcement of several provisions of the 2023 final rule. In conclusion, the Agency finds that the change in costs and benefits as a result of the extension would be de minimis for these entities.

This rule is not a major rule as defined under the Congressional Review Act (5 U.S.C. 801-808). 3

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996  4 requires Federal agencies to consider the effects of the regulatory action on small business and other small entities and to minimize any significant economic impact. The term small entities comprises small businesses and 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 (5 U.S.C. 601(6)). Accordingly, DOT policy requires an analysis of the impact of all regulations on small entities, and mandates that agencies strive to lessen any adverse effects on these businesses.

This final rule will extend the compliance date for specific provisions of the 2023 final rule, “Broker and Freight Forwarder Financial Responsibility,” by 1 year from January 16, 2025, to January 16, 2026. The provisions already scheduled for compliance on January 16, 2026, will not be affected. The rule will impact small entities such as some surety bond and trust fund providers, brokers, and freight forwarders. The extension will provide small entities with additional time to register in the new online registration system and understand its operations and functionalities. By delaying the submission of documentation for certain provisions until January 16, 2026, these entities will also realize de minimis cost savings.

Consequently, I certify that this action will not have a significant economic impact on a substantial number of small entities.

In accordance with section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857), FMCSA wants to assist small entities in understanding this final rule so they can better evaluate its potential effects on themselves and participate in the rulemaking initiative. If the final rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult the person listed under FOR FURTHER INFORMATION CONTACT .

Small businesses may send comments on the actions of Federal employees who enforce or otherwise determine compliance with Federal regulations to the Small Business Administration's Small Business and Agriculture Regulatory Enforcement Ombudsman (Office of the National Ombudsman, see https://www.sba.gov/about-sba/oversight-advocacy/office-national-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 FMCSA, call 1-888-REG-FAIR (1-888-734-3247). DOT has a policy regarding the rights of small entities to regulatory enforcement fairness and an explicit policy against retaliation for exercising these rights.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) (UMRA) requires Federal agencies to assess the effects of their discretionary regulatory actions. The Act addresses actions that may result in the expenditure by State, local, or Tribal government, in the aggregate, or by the private sector of $200 million (which is the value equivalent of $100 million in 1995, adjusted for inflation to 2023 levels) or more in any 1 year. This final rule will not result in such an expenditure, so the analytical requirements of UMRA do not apply.

Due to the change of compliance date, the existing information collection requirements pertaining to broker and freight forwarder financial responsibilities will be updated at a later date.

A rule has implications for federalism under section 1(a) of E.O. 13132 if it has “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.”

FMCSA has determined that this rule will not have substantial direct costs on or for States. Nothing in this document preempts any State law or regulation. Therefore, this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Impact Statement.

The Consolidated Appropriations Act, 2005, 5 requires the Agency to assess the privacy impact of a regulation that will affect the privacy of individuals. This rule will not change any previously analyzed collections of personally identifiable information.

The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies and any non-Federal agency that receives records contained in a system of records from a Federal agency for use in a matching program.

The E-Government Act of 2002, 6 requires Federal agencies to conduct a Privacy Impact Assessment (PIA) for new or substantially changed technology that collects, maintains, or disseminates information in an identifiable form. No new or substantially changed technology will collect, maintain, or disseminate information as a result of this rule. Accordingly, FMCSA has not conducted a PIA. However, FMCSA will publish a PIA and a System of Records Notice covering all information that will be collected in the new online registration system.

In addition, the Agency submitted a Privacy Threshold Assessment (PTA) to evaluate the risks and effects the proposed rulemaking might have on collecting, storing, and sharing personally identifiable information. The PTA was adjudicated by DOT's Chief Privacy Officer on November 21, 2024.

This rule does not have Tribal implications under E.O. 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.

FMCSA analyzed this rule pursuant to the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ) and determined this action is categorically excluded from further analysis and documentation in an environmental assessment or environmental impact statement under FMCSA Order 5610.1 (69 FR 9680), appendix 2, paragraphs (6.k) and (6.q). The categorical exclusions (CEs) in paragraphs (6.k) and (6.q) cover broker activities and implementation of record preservation. The requirements in this rule are covered by these CEs.

For the reasons set forth in the preamble, FMCSA amends 49 CFR parts 386 and 387 as follows:

Background

The U.S. Fish and Wildlife Service (Service) is the Federal agency delegated with the primary responsibility for managing migratory birds, including bald eagles and golden eagles. Our authority derives primarily from the Migratory Bird Treaty Act of 1918, as amended, 16 U.S.C. 703-12 (MBTA), which implements conventions with Canada, Mexico, Japan, and the Russian Federation. The MBTA protects certain migratory birds from take, except as permitted under the MBTA. We implement the provisions of the MBTA through regulations in parts 10, 13, 20, 21, and 22 of title 50 of the Code of Federal Regulations (CFR). Regulations pertaining to migratory bird permits are set forth at 50 CFR part 21. In addition, the Bald and Golden Eagle Protection Act, 16 U.S.C. 668-668d (the Eagle Act), prohibits take of bald eagles and golden eagles except pursuant to Federal regulations. The Eagle Act authorizes the Secretary of the Interior to issue regulations to permit the “taking” of eagles for various purposes, including the protection of “other interests in any particular locality” (16 U.S.C. 668a), provided the taking is compatible with the preservation of eagles. Regulations pertaining to eagle permits are set forth at 50 CFR part 22.

The Service has long authorized activities pertaining to migratory birds under regulatory authorizations. The origins of the regulatory authorization that provides for “general exceptions to permit requirements” (50 CFR 21.12) can be traced back to 1944. Regulatory authorizations are regulations that establish eligibility criteria and conditions without requiring a permit to conduct those activities. Regulatory authorizations are best suited for activities that have straightforward eligibility criteria and well-established conditions and pose a low risk to migratory bird populations.

The Service uses regulatory authorizations to authorize the take or possession of migratory birds. We may include mandatory or recommended conditions and recordkeeping, reporting, and inspection requirements. Regulatory authorizations have a relatively low administrative burden because they do not require submission of an application to obtain a permit from the Service prior to conducting an activity. Those who are eligible for a regulatory authorization must comply with any required conditions, including recordkeeping and reporting requirements, and are subject to enforcement for noncompliance. Examples of current regulatory authorizations include general permit exceptions (50 CFR 21.12) as well as depredation and control orders (50 CFR part 21, subpart D).

We published a proposed rule on June 1, 2023 (88 FR 35809), to revise the existing regulatory authorizations, add new regulatory authorizations, and amend various provisions in the regulations governing the take and possession of migratory birds and eagles. The proposed rule included amendments to 50 CFR parts 21 and 22 to update references to 50 CFR 21.12. We also proposed to add a definition for “humane and healthful conditions” to 50 CFR 21.6 and 22.6, remove the current regulatory authorization for the possession of live migratory birds, and make clarifying changes to Federal authorizations under the Airborne Hunting Act (AHA) regulations (50 CFR 19.21). The comment period closed July 31, 2023.

This rulemaking improves organization and transparency of the regulations that set forth regulatory authorizations. We also include new regulatory authorizations, expanding the activities that do not require a permit both because they are well suited to straightforward eligibility criteria and because they are likely to have no or negligible impact on migratory bird populations and conservation. Finally, we modify the limitations on permits under the AHA regulations (50 CFR part 19) to support emerging uses of technology for bird conservation.

We describe each of the regulations in more detail below in this preamble.

In this rulemaking, the Service modifies five existing regulatory authorizations (prior to this rulemaking, located in 50 CFR 21.12(a)-(d) and indicated with “revised” in the preamble headings below) and redesignates them to their own sections. These modifications clarify language in the authorizations that was unclear, confusing, or created unintended restrictions or allowances. The Service also includes new regulatory authorizations for the following activities: salvage, activities by agency natural-resource employees, and exhibition of eagle specimens. The regulations are not authorizing a new activity. Instead, they are changing the authorization mechanism from a permit to a regulatory authorization. After decades of issuance, the Service has developed straightforward eligibility criteria for these permit types and they have had no or negligible impact on migratory bird populations or their conservation. Moreover, the permit conditions do not require case-by-case customization, making these permit activities appropriate for a regulatory authorization.

Current regulations include a regulatory authorization that allows any person (as defined in 50 CFR 10.12) to remove a migratory bird from the interior of a building or structure. We redesignate this regulation from § 21.12(d) to § 21.14 and make clarifying revisions. We expand the authorization from “residence or a commercial or government building” to “residence, business, or similar building or structure where people live or work.” We amend this text because it inadvertently excluded structures, such as belltowers, in which the presence of migratory birds is preventing the normal use of the structure's interior, such as by causing a health or safety risk to humans or birds or damage to property such as foodstuffs or products for sale, or where the bird may become injured because it is trapped. It is beneficial to birds and humans for us to allow removal of birds unintentionally trapped in the interior of any building or structure. This authorization would not apply to birds or nests on the exterior of a building or structure. Removal of in-use nests on the exterior of buildings or structures would continue to require a permit, such as in exterior eaves or bridges. We also include additional text that requires removal of birds to be undertaken under humane and healthful conditions and provides sources for technical assistance, including the American Veterinary Medical Association Guidelines for the Euthanasia of Animals which is readily available online at https://www.avma.org/resources-tools/avma-policies/avma-guidelines-euthanasia-animals with free public access.

Previously, regulations required a permit for any person to salvage ( i.e., pick up) migratory birds found dead, including parts, feathers, nonviable eggs, and inactive nests. Salvage permits have been issued under the special purpose permits regulations (§ 21.95). We add a new authorization at § 21.16 for any person to salvage migratory birds found dead. Federal, Tribal, State, Territorial, or local guidance for safe handling and disposal of dead wildlife should be followed.

Salvage permits have minimal issuance criteria and no customized permit conditions. To reduce the administrative burden for the public and the Service, we replace the current permit requirement for salvage with a regulatory authorization. The primary purpose of adding this regulation is to address salvage situations where individuals are not actively seeking out dead birds. Examples include a person who discovers that a migratory bird has died from a vehicle-strike, but the remains are in good condition and the person wants to put the specimen to good use by donation to a nature center, or a homeowner who discovers a dead bird near their home and wants to put it in the trash. It does not make sense to prohibit these everyday activities or to require a permit to conduct them.

All birds salvaged under the new authorization must be promptly disposed of by donation to a person or entity authorized to receive them, such as for purposes of education or science, or by complete destruction. Complete destruction of dead migratory birds is most commonly achieved by burial or incineration, in accordance with applicable Federal, Tribal, State, Territorial, and local laws and ordinances. If allowed by local laws and ordinances, placing specimens in the trash is considered burial, as the specimens are ultimately buried in the landfill. Any person may contact the Service Migratory Bird Program to determine if an entity is authorized to receive donated birds. Birds may not be retained for personal use, sold, bartered, or traded.

This authorization does not apply to any person who is salvaging birds for the purposes of scientific research. For research activities, the Service continues to require a scientific collecting permit (§ 21.73), which also provides authorization to collect samples from salvaged birds. The Service will continue to authorize salvage for utility purposes with a special purpose utility permit (§ 21.95) for migratory birds found dead on or near utility property, infrastructure, or rights-of-way. The Service reserves the right to notify any person that a permit is required to salvage migratory birds for purposes beyond the scope of this regulatory authorization.

Previously, persons without a salvage permit who found an eagle needed to notify a Federal, Tribal, or State wildlife agency who had authorization to salvage the eagle, parts, or feathers. Now, individuals who discover eagles have the option to contact the Service's National Eagle Repository (Repository) directly or continue contacting their Federal, Tribal, or State wildlife agency. The Service recognizes that bald eagles and golden eagles hold cultural significance for many Native American Tribes. In honor of our trust relationship with Native American Tribes, we make this change to reduce the current barriers to donation to the Repository. The Repository, in Commerce City, CO, may be contacted for donation instructions at repository@fws.gov or 303-287-2110.

We continue to require that any salvaged bald eagles or golden eagles be donated to the Repository and to allow the Repository to determine if eagles, parts, or feathers are suitable for distribution. However, the rule provides that, if determined unsuitable by the Repository, those items could be donated for scientific or exhibition purposes or completely destroyed, such as by burial or incineration, in accordance with applicable Federal, Tribal, State, and local laws and ordinances. The rule does not change the authorization for Native American Tribes to retain eagles with a Tribal eagle remains permit (§ 22.60).

Previously, a Service regulation (at § 21.12(b)(1)) authorized certain public and private institutions to possess migratory birds without a permit. Some aspects of the purpose and scope of this regulation were unclear. With this final rule, the Service replaces § 21.12(b)(1) with the regulatory authorization for exhibition use of specimens at § 21.18.

In this authorization, public entities are authorized to possess lawfully acquired migratory bird specimens without a permit for the purposes of public conservation-education programs or public archival purposes. Similar to the definition of “public” in 50 CFR 10.12, the Service will use the term “public” for all part 21 and part 22 regulations to mean entities that are open to the general public and are either established, maintained, and operated as a governmental service or are privately endowed and organized but not operated for profit. Individuals and private for-profit entities are not considered public.

• “Open to the general public” means an entity that is open on a regularly scheduled basis during publicly posted hours of at least 400 hours per calendar year, such as for archive access or static display, or that conducts at least 12 public educational programs per year. The entity may charge a fee for entry or to attend programs. A program will not qualify as a public program if access is restricted to a limited group of individuals.

• “Governmental service” means services provided by government agencies, including Federal, Tribal, State, Territorial, or local agencies, as well as services provided by entities operating on behalf of a government agency, such as contractors. Those operating on behalf of an agency must have documentation ( e.g., a letter from the agency) authorizing operation. The purpose of the exhibition must be for conservation education or scientific purposes, but the purpose of the agency does not need to be education or science.

• “Not operated for profit,” also known as nonprofit organizations, means an entity that is privately endowed ( i.e., funded) and documented in accordance with Internal Revenue Service tax-exempt standards under 26 U.S.C. 501(c)(3) or similar Federal standards.

• The term “endowed” is interpreted as synonymous with “funded” and does not require a minimum endowment to qualify as public. The Service recommends that an entity's financial health and stability should be sufficient to cover the operational costs of the activities conducted as well as costs in the event of unexpected closure, such as placement of specimens or live birds.

The regulatory authorization does not authorize the possession of live migratory birds; however, the exhibition and propagation of live birds will continue to be authorized by permit. Any entity in possession of live migratory birds and currently operating under § 21.12(b)(1) may continue activities currently authorized by § 21.12(b)(1) until the Service finalizes a rulemaking regarding the exhibition of live migratory birds and eagles for educational purposes (RIN 1018-BF58; see the advance notice of proposed rulemaking that published June 1, 2023, at 88 FR 35821; Docket No. FWS-HQ-MB-2023-0015). Once the live bird exhibition rulemaking is finalized, those entities will need to comply with the new regulations.

So that we may better understand the number and types of entities operating under the current exhibition exception, we request that entities currently operating under § 21.12(b)(1) email the Service at migbirdpermits@fws.gov by March 31, 2025 with the following information:

(1) The entity name, physical address, and, if different, mailing address;

(2) the name, title, and contact information of the principal officer who is in charge of the organization;

(3) the name, title, and contact information of the primary contact the Service should use, if different than the principal officer; and

(4) the following statement: “This entity is currently operating under the permit exception at 50 CFR 21.12(b)(1) and intends to continue operating under the conditions of this exception until the Service publishes exhibition regulations.”

The Service will use this information to contact those entities once the new exhibition regulations are final.

Previously, an eagle exhibition permit (§ 22.50) was required to possess eagle specimens for exhibition purposes, including mounts, feathers, parts, eggs, and nests. These permits are limited under the Eagle Act to public museums, scientific societies, and zoological parks (16 U.S.C. 668a) and can include take and possession of live birds as well as specimens. Most of these permittees are government entities that display a single, mounted eagle in a visitor center or building entrance. These exhibition permits for specimens have straightforward issuance criteria and conditions that are standard for all permittees. Therefore, to reduce the administrative burden for these public entities and the Service, we provide a regulatory authorization at § 22.15 for public museums, scientific societies, and zoological parks to possess eagle specimens for exhibition use without a permit. Possession of live birds will continue to require a permit. This regulatory authorization also does not authorize any taking of eagles. Any eagle specimens must have been legally obtained under the terms of a part 22 eagle permit or as authorized by § 21.16. We create in part 22 a new subpart B that has a similar structure to part 21, subpart B, and sets forth regulatory authorizations for eagles.

We anticipate no change in the availability of eagles for members of federally recognized Tribes as a result of this action. Nearly all eagle specimens for exhibition use are already in possession. Any eagle specimens newly acquired for exhibition use must be approved by the Repository as not suitable for Native American distribution. Documentation showing lawful acquisition and written authorization from the Repository for donation must accompany any newly acquired specimens before transfer to exhibition use.

The Eagle Act (16 U.S.C. 668a) restricts authorization for scientific or exhibition purposes to “public museums, scientific societies, and zoological parks.” The Service uses a plain-English interpretation of “museum” and “zoological park,” by which a public museum is a building or place where objects are curated for and displayed to the public, and a zoological park is a place where living animals are kept in enclosures and displayed to the public. The Eagle Act's inclusion of the term “scientific societies” does not readily have a plain-English interpretation. Therefore, the Service adopts the following interpretation: A scientific society is any entity that, as part of its purpose, promotes public knowledge about science or conducts research and makes data and findings available to the public. Scientific societies may include government agencies, schools and universities, and nongovernmental organizations. Qualifying as a public museum, scientific society, or zoological park is only one of the criteria necessary to conduct eagle exhibition or eagle scientific collecting activities. We would continue to maintain appropriate standards for evaluating an entity's qualifications relative to the authorization requested.

A regulatory authorization authorizes licensed veterinarians to provide veterinary care of sick, injured, and orphaned migratory birds including eagles. We redesignate this regulation from §§ 21.12(c) to 21.22 and make the following revisions: (1) Edit the existing language to improve readability, (2) clarify what is included in veterinary care, and (3) clarify expectations regarding disposition of live and dead migratory birds. A Federal rehabilitation permit (§ 21.76) is required to conduct amputations and other procedures that could render a bird nonreleasable. A Federal rehabilitation permit is also required to determine if a sick, injured, or orphaned bird is nonreleasable, where nonreleasable means the bird is not suitable for release into the wild because of injury, being imprinted, or for other reasons determined by the Service.

Regulations currently authorize natural resource and public health agency employees to address avian disease outbreaks without a permit. We expand this authorization from infectious disease outbreaks to include mortality events of suspected disease outbreaks because some mortality events ( e.g., those caused by toxins or mass starvation) may have an unclear cause at the time of discovery and a timely response is necessary to ensure public safety until the cause of avian mortality can be determined.

We redesignate this regulation from §§ 21.12(b)(2) to 21.32 and make revisions as follows. We clarify that the scope of this authorization includes all mortality events where infectious disease is a suspected cause. A mortality event is an unforeseen event that results in an unexpectedly high number of sick or dead birds in a particular location over a short period of time from a cause that appears to be biologically related. For example, multiple dead birds of taxonomically related species exhibiting similar clinical signs in a discrete geographic area over roughly the same time period. We adopt the U.S. Geological Survey, National Wildlife Health Center's interpretation of “unexpectedly high” as five or more individuals (see https://www.usgs.gov/centers/nwhc ). The National Wildlife Health Center is the science lead in the Department of the Interior (DOI) on the detection, control, and prevention of wildlife disease in the United States. The primary use of this regulatory authorization is to respond to avian infectious disease outbreaks, such as avian influenza or West Nile virus. Timely response is necessary to identify the cause of the outbreak, contain its spread, and reduce exposure and potential infection of humans, livestock, other domestic animals, and wildlife.

This authorization does not apply to mortality events due to causes that are not suspected as disease-related, such as collisions with infrastructure, fall-out due to circling lights, and other non-disease-related mortality. The authorization also does not apply to the take of asymptomatic birds, including for activities such as disease monitoring. Instead, agencies conducting disease monitoring of asymptomatic birds should obtain a scientific collecting permit (§ 21.73).

With this regulation, the Service establishes a new regulatory authorization at § 21.34 to salvage birds, use migratory bird specimens for educational programs, transport birds to medical care, and relocate birds in harm's way. These activities were previously authorized by special purpose permits (§ 21.95) issued to Service and State wildlife agency employees. This authorization facilitates Federal, State, Territorial, and federally recognized Tribal natural resource agency employees conducting routine activities involving birds and reduces the administrative burden of the permit process on the Service and other natural resource agencies. The regulatory authorization adopts the same conditions that the Service currently uses when issuing permits to employees of the Service and State wildlife agencies under the special-purpose permit regulations at § 21.95.

This authorization extends the authorization at § 21.76 for transporting birds to medical care by authorizing possession of sick, injured, or orphaned birds by natural resource employees, when necessary and humane, for up to 72 hours or to humanely euthanize birds if necessary. Natural resource agency employees are often in remote areas and are in the best position to provide humane care, without increasing bird stress by transporting long distances. Consistent with current permit conditions, this regulatory revision would authorize the salvage of birds and relocation when birds or humans are at risk.

Current regulations authorize DOI law enforcement personnel to conduct certain activities without a permit. We redesignate this regulation from §§ 21.12(a) to 21.40 and clarify that this authorization pertains to all law enforcement agencies authorized to enforce laws consistent with the MBTA or the Eagle Act. This authorization will be limited to personnel performing official law enforcement duties. Under this regulation, we also allow law enforcement agents to temporarily designate authority to another individual to acquire, possess, transport, or dispose of migratory birds on behalf of law enforcement in certain circumstances—for example, to pick up and dispose of a deceased bird in a remote area. This temporary designation should be recorded in writing by the law enforcement agent delegating the authority. The document must record the name and contact information of both the individual authorized and the authorizing agent as well as the dates authorized and clearly explain the extent of the actions the individual is authorized to perform.

Regulations at 50 CFR 13.41 currently require that any live wildlife must be possessed under “humane and healthful conditions.” Under this rule, we add a definition to the Definitions sections for 50 CFR parts 21 and 22 (at §§ 21.6 and 22.6) to define “humane and healthful conditions” as the phrase applies to the possession of live migratory birds and live bald eagles and golden eagles. The definition is identical for both part 21 and part 22 and includes both temporary ( e.g., trap-release activities) and long-term ( e.g., rehabilitation or exhibition activities) possession. The definition also clarifies that humane and healthful conditions include all aspects of possession and care, such as handling, housing, feeding, watering, sanitation, ventilation, shelter, protection from predators and vermin, enrichment, veterinary care, and euthanasia.

We remove the reference at § 21.76(e)(1) to the Minimum Standards for Wildlife Rehabilitation (2000) as guidelines for evaluating the adequacy of caging dimensions. The National Wildlife Rehabilitators Association and International Wildlife Rehabilitation Council recently published an updated Standards for Wildlife Rehabilitation (2021). The Service considered proposing to amend the regulation at § 21.76(e)(1) to reference the updated edition. Instead, we will apply the Service's Migratory Bird Permit Memorandum: Evaluating Humane and Healthful Conditions at Rehabilitation Facilities (MBPM-12). Consistent with MBPM-12, the Service will use the most current edition of Standards for Wildlife Rehabilitation as the Service's approved guidance document for evaluating humane and healthful conditions at rehabilitation facilities. Applicants should review the rehabilitation permit application form and application FAQ for the most current Service approved guidance.

We amend the regulations at 50 CFR part 19 to authorize any person to hunt, shoot, or harass migratory birds under the Airborne Hunting Act (AHA) using any appropriate part 21 or part 22 permit. While the harassment, as defined in 50 CFR 19.4, of migratory birds alone does not otherwise require authorization under the MBTA, the AHA clearly prohibits the use of any aircraft to harass any wildlife, including migratory birds (§ 19.11), necessitating the need to issue a permit to authorize the harassment of migratory birds with aircraft. Service regulations previously limited the issuance of Federal permits authorizing any person to hunt, shoot, or harass any wildlife from an aircraft, to migratory bird depredation permits issued under 50 CFR 21.100.

The Service removes this limitation and will use the most appropriate permit type for the purpose of the activity requested; for example, scientific-collecting permits (§ 21.73) for research. AHA authorization may also be added to other permit types, including for utility or communication tower purposes under special purpose utility permits (§ 21.95) or for eagle harassment associated with monitoring using aircraft with eagle incidental take permits (§ 22.250 or § 22.260, respectively); preconstruction surveys conducted by Federal or State employees will continue to be authorized under § 19.12(1).

The Service considers aircraft operating at minimum safe altitudes, as defined in 14 CFR 91.119(a), (b), or (c) at or above 500 feet above the surface, unlikely to harass migratory birds. Aircraft operating closer than 500 feet above the surface at any time under 14 CFR 91.119(c) or (d), or operating under a waiver of 14 CFR 91.119, should consider whether migratory bird harassment may occur and, if so, obtain authorization under AHA regulations if an AHA exception (16 U.S.C. 742j-1(b)(1)) does not apply. Unmanned aircraft systems (UAS or “drones”) are classified and regulated as “aircraft” by the FAA, by definition, as “a device that is used or intended to be used for flight in the air” (14 CFR 1.1). The DOI Office of Aviation Services follows the FAA definition (Operational Procedures Memorandum 11). UAS used for commercial operations are regulated under 14 CFR part 107. Recreational use of UAS is regulated under 49 U.S.C. 44809. Pilots of UAS who plan to fly less than 400 feet above ground level should consider whether migratory bird harassment may occur and, if so, obtain authorization under the AHA if an AHA exception does not apply.

The regulatory revisions to 50 CFR 19.21 authorize new and emerging uses of aircraft, including UAS, which is consistent with the AHA's exception for permits that authorize “administration or protection of land, water, wildlife, livestock, domesticated animals, human life, or crops” (16 U.S.C. 742j-1(b)(1)).

The Service adds disqualifying factors at § 21.5 and § 22.5. The regulations at 50 CFR part 13 describe general permit procedures, including issuance of permits (§ 13.21), and the factors that disqualify a person from receiving a permit. These factors include conviction of a felony violation of the MBTA or Eagle Act, prior revocation of permits for certain reasons, failure to pay fees and fines, and failure to submit reports.

For legal purposes, the Service considers regulatory authorizations to constitute a permit as defined in 50 CFR 10.12. The definition of “permit” refers to a “document.” We interpret the term “document” to include a regulation such as this final rule, which describes, authorizes, and limits regulated activities and is signed by an authorized official—the DOI Assistant Secretary of Fish and Wildlife and Parks.

Therefore, to clarify that the disqualifying factors for permits also apply to regulatory authorizations, we add §§ 21.5 and 22.5, which adopt the part 13 disqualifying factors for all activities authorized by regulation or permit under parts 21 and 22. The text is adapted from § 13.21(c) to improve readability and clarify requirements.

Because we redesignated the regulatory authorizations to new CFR sections, we correct cross-references to these sections in other parts of our regulations. Affected sections include rehabilitation permits (§ 21.76), falconry standards and falconry permitting (§ 21.82), raptor propagation permitting (§ 21.85), and eagle scientific and exhibition permits (§ 22.50). In this rulemaking, we are not making any changes to the falconry regulations or raptor propagation regulations beyond updating regulation references. These updates are administrative in nature; they do not change the species protected by the regulations or the permit requirements or any other requirements of the MBTA or its implementing regulations. We also update the address in the application procedures of banding or marking permits (§ 21.70) to reflect that the Bird Banding Lab is part of the U.S. Geological Survey and not the Service.

Based on comments we received on the proposed rule (88 FR 35809, June 1, 2023), we made changes to the proposed regulations as set forth in the final regulations in this document. In general, changes included clarifying updates in response to the public comments received and nonsubstantive edits to improve readability. The following is a summary of the changes made between the proposed rule and this final rule:

1. Airborne Hunting Act—We added a clause to proposed § 19.21 to clarify that we will issue the appropriate part 21 or part 22 permit based on the purpose of the take or the activity being conducted.

2. Scope of regulations—We reformatted § 21.4 to improve readability and to easily identify the headings of the listed regulations.

3. Disqualifying factors—To clarify that the disqualifying factors set forth in 50 CFR part 13 also apply to regulatory authorizations, we had proposed new regulations at §§ 21.5 and 22.5 to adopt the factors set forth in part 13. After further review, we have revised the proposed language for §§ 21.5 and 22.5 to improve clarity.

4. Birds in buildings authorization—To reduce confusion regarding what types of structures and under what circumstances birds can be removed from buildings, we added clarifying language to proposed § 21.14.

5. Salvage authorization—We reorganized proposed § 21.16 to improve readability. We also clarified that this authorization is not intended for individuals actively searching for dead birds, such as for scientific research. Additionally, we added that any person who salvages eagles may turn in the specimens to a Federal, Tribal, or State wildlife agency as an alternative to contacting the National Eagle Repository.

6. Exhibition use of specimens, including eagle specimens, authorization—In § 21.18, we further clarified what entities qualify as “public” to avoid unintended restrictions regarding who qualifies under this regulatory authorization.

To clarify how pre-MBTA specimens may be displayed, we added a reference to § 21.4(a) to § 21.18, and to clarify how pre-Eagle Act specimens may be displayed, we added a reference to § 22.4(a) to § 22.15. We also added a recordkeeping requirement to document how entities meet the eligibility criteria for this authorization.

7. Licensed veterinarian authorization—We had proposed to move the authorization pertaining to licensed veterinarians to § 21.20; however, in this final rule, we are placing this authorization at § 21.22 to allow for a future rule to set forth a different provision at § 21.20. In § 21.22, we added a recommendation that a licensed veterinarian contact a federally permitted migratory bird rehabilitator when needing assistance in determining whether birds are suitable for release and suitable release locations when releasing birds in the first 24 hours. We also added language to clarify that a determination of nonreleasable status may only be determined by the holder of a rehabilitation permit.

8. Mortality event authorization—In § 21.32, we added examples to further clarify what we consider to be a qualified mortality event. We also added instructions for who to contact when a mortality event involves eagles.

9. Natural resource agency employees authorization—In § 21.34, we clarified recordkeeping requirements to confirm that keeping records of salvaged birds is not required under this regulation.

10. Banding or marking permits—We revised § 21.70 to correct an incorrect address that we discovered after publishing the proposed rule.

11. Rehabilitation permits—In § 21.76, we clarified that Service approved guidance will be used to evaluate rehabilitation facilities.

12. For consistency throughout the rule, where we used the term “remains,” we replaced it with “specimens” where appropriate, and where we used the term “institution,” we replaced it with “entity” where appropriate.

13. Finally, we revised the heading for part 21, subpart B, from “Exceptions to Permit Requirements” to “Regulatory Authorizations for Migratory Birds” and the heading for part 22, subpart B, from “Exceptions to Permit Requirements” to “Regulatory Authorizations for Eagles” to better reflect the contents of the revised subparts. We also revised the headings of new sections being added to part 21, subpart B, to conform style with the current section headings in that subpart and to distinguish clearly between sections pertaining to regulatory authorizations and sections pertaining to permit exceptions.

The Service received 12 unique letters, which contained 59 distinct comments, on the proposed rule. The following section contains the substantive public comments we received on the proposed rule and our responses. Where appropriate, we explain why we did or did not incorporate the changes suggested by the commenters into this final rule. Not included are the many comments providing general support for provisions of the rulemaking. Likewise, we do not include summaries of any comments providing general opposition, unless they contain suggestions for improvement. We also do not respond to comments that we considered to be outside the scope of this rulemaking.

Comment. Clarify what is considered “human-occupied.”

Response. The Service agrees that this term created confusion. We have revised the regulatory text to explain that “human-occupied” means a building or structure where people live or work.

Comment. Clarify who is allowed to remove migratory birds from a building because the text as proposed could mean any person at any time for any reason.

Response. The regulation allows any person to remove birds or nests from the interior of a building or structure where people live or work, but only when the presence of migratory birds is preventing the normal use of the interior of the building or the structure, including causing a health or safety risk to humans or birds, damage to property such as foodstuffs or products for sale, or if the bird may become injured because it is trapped. The Service added examples to § 21.14 to further clarify purpose and scope. This provision does not authorize possession of or incubating eggs. As stated in § 21.14(b)(3), eggs or nestlings must be transported to a federally permitted migratory bird rehabilitator or humanely destroyed or euthanized by following the American Veterinary Medical Association Guidelines for the Euthanasia of Animals.

Comment. How should the public locate a federally permitted rehabilitator?

Response: The Service maintains a map of federally permitted migratory bird rehabilitators. This map can be found by visiting the migratory bird permits web page ( https://www.fws.gov/program/migratory-bird-permits/living-around-birds ) or the Service's arcgis web page ( https://fws.maps.arcgis.com/ ) and selecting “Find a Migratory Bird Rehab Facility.”

Comment. How can the public access the proper guidelines for euthanasia and the drugs or equipment necessary?

Response. The American Veterinary Medical Association Guidelines for the Euthanasia of Animals is readily available online at https://www.avma.org/resources-tools/avma-policies/avma-guidelines-euthanasia-animals with free public access.

Comment. The Service should consider developing a voluntary self-reporting tool for birds removed under the birds-in-buildings authorization.

Response. The Service recognizes the value in information relating to the take of migratory birds; however, we must also balance the value of information collection with the time and cost burden of that collection. We are revising an existing regulation that did not previously have a reporting requirement, and we did not propose a new reporting requirement. As the Service continues to develop the technology for easy, online reporting, we may consider changing our approach in the future.

Comment. Members of the public should consult with the Service or appropriate State agencies prior to disposal of dead migratory birds if high mortalities are encountered.

Response. As stated in § 21.16(f), any person salvaging birds must notify the Service Office of Law Enforcement if five or more birds are found dead.

Comment. The Service should continue to require permits for large-scale salvage operations at commercial facilities, including standardized specimen trials conducted at wind and solar energy facilities.

Response. The Service agrees. Large-scale salvage operations that would require possession of migratory bird specimens do not qualify under § 21.16. This authorization does not apply to any person who is conducting research and salvaging birds for the purposes of scientific research. The Service continues to require a scientific collecting permit (§ 21.73) for research activities, especially if samples will be collected from those salvaged birds. The Service will continue to authorize salvage for utility purposes with a special-purpose utility permit (§ 21.95) for migratory birds found dead on utility property, structures, and rights-of-way.

Comment. This rule could allow anyone to pick up birds, eggs, and nests for any reason or kill birds for feathers with no oversight by the Service.

Response. Nothing in this rulemaking allows birds to be killed for feathers. While anyone can salvage dead birds, nonviable eggs, and inactive nests, they must be promptly donated and not retained in possession. All salvaged migratory bird specimens must either be donated to a person or institution authorized to receive them under a valid permit or regulatory authorization or disposed of by destroying the specimens. The Service has long been authorizing these activities, which have straightforward eligibility criteria and standardized permit conditions, making them appropriate for a regulatory authorization. The Service will continue to monitor legal activities and take enforcement action on illegal activities.

Comment. Define “promptly disposed of.”

Response. The regulation at § 21.16(a)(1) states that all salvaged specimens must be disposed of within 7 calendar days. We added language to § 21.16(b)(3) and (c)(3) stating “unless directed otherwise by the Service” to cover situations with extenuating circumstances.

Comment. The Service should develop a list of institutions willing to accept salvaged bird specimens and make it available online.

Response. At this time, we are unable to post a comprehensive list of those entities authorized to receive donated birds; however, the regional Migratory Bird Permit Offices can respond to inquiries from the donors or the recipients to assist with determining eligibility.

Comment. Does the regulatory authorization apply to regular salvage of birds?

Response. This authorization does not apply to any person who is salvaging birds for the purposes of scientific research. The Service continues to require a scientific collecting permit (§ 21.73) for research activities, which also provides authorization for any samples collected from those salvaged birds. The Service will continue to authorize salvage for utility purposes with a special-purpose utility permit (§ 21.95) for migratory birds found dead on or near utility property, infrastructure, or rights-of-way. The Service reserves the right to notify any person that a permit is required to salvage migratory birds for purposes beyond the scope of this regulatory authorization.

Comment. Does “any person” include a company or other entity?

Response. In § 10.12, the Service defines “person” to mean any individual, firm, corporation, association, partnership, club, or private body, any one or all, as the context requires. The use of “any person” in the regulations in this final rule aligns with the regulatory definition of “person.”

Comment. There should not be an annual reporting requirement for educational use of specimens under § 21.18.

Response. The Service did not propose an annual reporting requirement. The proposed and final rules require that records be maintained and be available upon request as outlined in § 21.18(g).

Comment. This rule removes Service oversight and control over the collection, keeping, transferring, and displaying of migratory birds, which could be misused and exploited.

Response. The regulations pertain to the exhibition use of migratory bird specimens. The Service did not propose nor does this rule change any requirements regarding collection or take of live birds from the wild. As with any regulation, there is the potential for misuse or exploitation. Restricting possession under this regulatory authorization to government agencies and nonprofit organizations limits that potential and is a minimal extension beyond what was previously authorized under § 21.12(b)(2).

Comment. Is the Service proposing a new definition of “public”?

Response. The Service is not proposing a change to the definition of “public” in § 10.12. We are applying the current definition to the regulations in this rule.

Comment. Clarify what eliminating the general authorization to possess live birds means for exempt facilities.

Response. Any entity currently operating under § 21.12(b)(1) may continue activities currently authorized by the regulatory authorization until the Service finalizes a rulemaking regarding the exhibition of live migratory birds and eagles for educational purposes (RIN 1018-BF58). Once the educational use rulemaking is finalized, those entities would need to comply with the new regulations. See discussion of this issue above under “This Rulemaking” and Public Institutions—Exhibition Use of Specimens Authorization (revised).

Comment. Natural resource agencies should be included in the list of entities that may possess eagle specimens for exhibition and educational purposes instead of relying on the interpretation that these agencies are covered as “public scientific societies.”

Response. The Eagle Act (16 U.S.C. 668a) restricts possession to public museums, zoological parks, and scientific societies. The Service cannot revise the statutory language. We interpret a “scientific society” to include any entity that, as part of its purpose, promotes public knowledge about science or conducts research and makes data and findings available to the public; thus, the term includes government agencies as well as public schools and universities and certain nongovernmental organizations.

Comment. Can the Service make it easier and more efficient for agencies and the general public to provide eagle specimens to the National Eagle Repository and clarify who makes the determination that an eagle specimen is not suitable for Native American distribution?

Response. This rule provides the authority for agencies and the public to salvage and ship eagle specimens to the National Eagle Repository without first obtaining a permit. The Repository provides instructions for obtaining a pre-paid shipping label and shipping boxes on their website. The Repository determines if eagles, parts, or feathers are suitable for distribution. If determined unsuitable by the Repository, eagles, parts, or feathers may be donated for scientific or exhibition purposes or completely destroyed. The Repository should be contacted directly with questions regarding suitability for distribution.

Comment. Prior consultation with an avian veterinarian or migratory bird rehabilitator should be required before providing veterinary care authorized under this part.

Response. The Service agrees that birds should get the best possible care. Trained avian veterinarians and migratory bird rehabilitators have the most training to provide quality care. However, individuals with these skills are not available in all areas. In these situations, licensed veterinarians are best positioned to provide care. The Service currently authorizes licensed veterinarians to conduct these activities and will continue to do so.

Comment. Unless a veterinarian possesses a rehabilitation permit, a veterinarian may not have the background to properly evaluate whether a bird is medically and behaviorally healthy enough for release or to determine suitable habitat for each species.

Response. The Service agrees that not all veterinarians have the background and training to make these determinations. The Service restricts disposition in most cases to either euthanasia or transfer to a rehabilitator. Veterinarians occasionally receive birds that require only a short period of rest prior to being suitable for release ( e.g., mild collisions with windows or vehicles). Transport of these birds to a rehabilitation facility may decrease survivability. We are trusting the professionalism of licensed veterinarians to seek assistance if a situation is outside the scope of their professional skill. We have added language in § 21.22 recommending that veterinarians contact a federally permitted migratory bird rehabilitator or their regional Migratory Bird Permit Office for assistance with determining whether a bird is suitable for release or determining suitable habitat for release, if necessary.

Comment. The rule is contradictory in stating that veterinarians cannot determine whether a bird is nonreleasable while, at the same time, prohibiting release of a bird held in care for longer than 24 hours, thus making the bird nonreleasable.

Response. Holding a bird in care longer than 24 hours does not make the bird nonreleasable. The regulations require only transfer of the bird to a federally permitted migratory bird rehabilitator to assess its condition, including determining releasability, within that timeframe.

Comment. The following statement in the proposed rule is ambiguous: “Within 48 hours after hospitalization is no longer required, live migratory birds must be transferred to a federally permitted migratory bird rehabilitator.”

Response. The Service clarified the language as follows: “After hospitalization is no longer required, within 48 hours, live migratory birds must be transferred to a federally permitted migratory bird rehabilitator.”

Comment. Clarify how unmanned aircraft systems (UAS) can be used for harassment but not authorized as a method of take ( e.g., killing a bird or contributing to the loss of a nest or young).

Response. The AHA requires authorization to hunt, shoot, or harass wildlife from aircraft, including UAS. The MBTA prohibits the take of migratory birds. This includes the killing of adult birds as well as conducting activities that result in the death, injury, or orphaning of eggs or chicks, such as keeping adults away from a nest resulting in nest abandonment or nest failure. The Service can issue permits for the take of migratory birds under the MBTA and the harassment of migratory birds under the AHA. The Service can also issue a permit for an aircraft or UAS to be an authorized method of take or harassment, provided that the take or harassment is humane and consistent with both the MBTA and AHA.

UAS are an emerging technology, and we do not want to unduly restrict technological advances and their application to migratory bird monitoring and research or human or wildlife health and safety. Any request to take birds using UAS would be evaluated through the permit application process, to ensure it is humane and the best available alternative that is consistent with the conservation of migratory birds. For example, the use of UAS has been explored as a method to addle eggs (which is a form of take) in nests on infrastructure that are creating a wildfire risk. With appropriate safeguards, this method poses minimal risk to human safety and adult birds.

Comment. Include §§ 21.41 and 21.23 as options for authorizing the use of UAS under § 19.21.

Response. The Service agrees that the AHA regulations should provide for more permit options under these regulations. Because of the emerging nature of UAS, the Service decided not to restrict authorization to any particular permit type and instead to allow use of the most appropriate regulation and permit under part 21 or part 22, which would include both permitting examples included in this comment. This provision will allow us to be as flexible as possible and use the most-appropriate permit type available.

Comment. If a State issues a permit pursuant to subpart D of the part 19 regulations, no Federal permit should be required.

Response. The Service has not revised the provision at § 19.31(a) that provides for the State to issue a permit for airborne hunting or harassing of wildlife. A Federal migratory bird permit would not be required for the harassment of migratory birds if someone holds a valid State permit that complies with the AHA. However, additional Federal permits may be required to hunt or otherwise take migratory birds.

Comment. The Service should develop a new regulatory authorization to allow the use of drones in nest surveys.

Response. The Service considered a regulatory authorization for specific uses of UAS that are unlikely to harass migratory birds. However, because of the emerging nature of UAS, continuing to authorize these activities by permit will ensure proposed activities are evaluated through the permit application process, to ensure the activities adopt a humane approach that is the best available alternative consistent with the conservation of migratory birds.

Comment. One commenter appreciated the inclusion of a definition for “humane and healthful conditions” but cautioned against using subjective terms such as “fear,” “pain,” and “suffering” as these terms may make it difficult to enforce this provision and recommended relying more heavily on “stress” as a physiological condition.

Response. We recognize that these terms are subjective in nature. Stress is a physiological condition; however, it is still largely interpreted by demonstrated physical behaviors in most settings. Responses vary among birds, so observing for a variety of other indicators such as fear, pain, and suffering is appropriate. Those in possession of live birds should use the best available information when assessing the condition of a bird.

Comment. The regulations should state that the U.S. Department of Agriculture (USDA) is the primary regulator of animal welfare.

Response. The Service's regulations in § 13.41 require that wildlife in care be housed in humane and healthful conditions. The Service is using the regulations in this rule to clarify what humane and healthful conditions means in the context of the activities authorized in part 21 and part 22. This definition was developed in coordination with USDA Animal Care.

The Administrative Procedure Act at 5 U.S.C. 553(d)(1) allows Federal agencies to make a rule effective in less than 30 days if the rule is a substantive rule that grants or recognizes an exemption or relieves a restriction. We are making this rule effective upon publication in the Federal Register because this rule relieves restrictions on current permit holders. This rule is deregulatory in nature because it replaces existing permit requirements with regulatory authorizations that do not require a permit. Therefore, existing permit holders will not need to renew their permits, and affected entities will not need to obtain new permits.

We further have good cause under 5 U.S.C. 553(d)(3) to make this rule effective upon publication in the Federal Register as renewals for these permit types begin in January. This rulemaking action will eliminate about 1,800 permits, with resulting considerable cost savings of time and money to both permit holders and the Federal Government. Delaying the effective date by 30 days would lead to unnecessary costs and efforts for permit holders, most of who prepare and submit renewal applications and fees with their annual report, which are due in January. It would also hinder the efficiency of migratory bird conservation efforts, as staff would need to process refunds and return applications.

Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. OIRA has determined that this rulemaking action is not significant.

Executive Order (E.O.) 14094 reaffirms the principles of E.O. 12866 and E.O 13563 and states that regulatory analysis should facilitate agency efforts to develop regulations that serve the public interest, advance statutory objectives, and are consistent with E.O. 12866 and E.O. 13563. Regulatory analysis, as practicable and appropriate, shall recognize distributive impacts and equity, to the extent permitted by law. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 (Pub. L. 104121)), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small businesses, small organizations, and small government jurisdictions. However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities.

SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide the statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities. We have examined this rule's potential effects on small entities as required by the Regulatory Flexibility Act and determined that this action will not have an economic impact on any small entities. This rule is deregulatory in nature. It would expand the scope of current regulatory authorizations as well as eliminate current permits by creating new authorizations. Thus, we certify that this rule will not have a significant economic impact on a substantial number of small entities.

This is not a major rule under SBREFA (5 U.S.C. 804(2)). This rule will not have an annual effect on the economy of $100 million or more; will not cause a major increase in costs or prices for consumers, individual industries, or Federal, Tribal, State, Territorial, or local government agencies, or geographic regions; and will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ), we have determined the following:

a. This rule will not “significantly or uniquely” affect small governments. A small government agency plan is not required. The regulatory revisions will not affect small government activities in any significant way.

b. This rule will not produce a Federal mandate of $100 million or greater in any year. Therefore, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act.

In accordance with E.O. 12630, the rule will not have significant takings implications. This rule does not contain a provision for taking of private property, so a takings implication assessment is not required. This rule is deregulatory in nature. It expands the scope of current authorizations as well as eliminates current permits by creating new authorizations.

This rule does not have sufficient federalism effects to warrant preparation of a federalism summary impact statement under E.O. 13132. It will not interfere with the States' abilities to manage themselves or their funds. No significant economic impacts are expected to result from the regulations changes.

In accordance with E.O. 12988, the Office of the Solicitor has determined that this rule will not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.

This rule contains new information collections. All information collections require approval by the OMB under the Paperwork Reduction Act of 1995 (PRA; 44 U.S.C. 3501 et seq. ). We may not conduct or sponsor, and you are not required to respond to, a collection of information unless it displays a currently valid OMB control number. We will ask OMB to review and approve the information collection requirements contained in this rulemaking related to permit applications, reports, and related information collections under the MBTA.

As part of our continuing effort to reduce paperwork and respondent burdens, and in accordance with 5 CFR 1320.8(d)(1), we invite the public and other Federal agencies to comment on any aspect of this information collection, including:

(1) Whether or not the collection of information is necessary for the proper performance of the functions of the agency, including whether or not the information will have practical utility;

(2) The accuracy of our estimate of the burden for this collection of information, including the validity of the methodology and assumptions used;

(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and

(4) Ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of response.

Comments that you submit in response to this rulemaking are a matter of public record. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

The information that we collect to determine eligibility to possess migratory birds and eagles by the general public, educators, and government agencies is the minimum necessary for us to determine if the applicant meets/continues to meet issuance requirements for the particular activity under the MBTA and Eagle Act. The new information collection requirements identified below require approval by OMB:

1. Written Petitions—Request for Waiver from Disqualification (50 CFR 21.5) —A conviction, or entry of a plea of guilty or nolo contendere, for a felony violation of the Lacey Act (16 U.S.C. 42, as amended), the Migratory Bird Treaty Act (16 U.S.C. 703-712), or the Bald and Golden Eagle Protection Act (16 U.S.C. 668-668d) disqualifies any such person from exercising the authorization granted by regulation or permit under part 21, unless such disqualification has been expressly waived by the Director in response to a written petition. This disqualification is lifted when the required reports are submitted unless the Service notifies the person in writing of permanent disqualification due to repeated or extended failure to meet reporting requirements.

2. Obtaining Landowner Permission to Access Land (50 CFR 21.16) —The regulations in that section authorize salvage activities and provide an exception to permit requirements for these activities. Any person may salvage migratory bird specimens under the conditions set forth in that section of the regulations. Specimens include whole birds found dead, parts, feathers, inactive nests, and nonviable eggs. This authorization does not apply to live birds, viable eggs, or in-use nests. This authorization does not grant land access. Authorized individuals requiring access are responsible for obtaining permission from landowners when necessary and for complying with other applicable laws. This authorization is not intended for individuals actively searching for dead birds, such as for scientific research.

3. 3rd Party Notifications—National Eagle Repository (50 CFR 21.16) —The National Eagle Repository (Repository) is responsible for determining whether salvaged eagle remains must be sent to the Repository or distributed to others. Eagle specimens include a whole bald eagle or golden eagle (eagle), part of an eagle ( e.g., wing or tail), or feathers. Authorized individuals who salvage eagle specimens must immediately contact the Repository and follow the Repository's instructions on transferring the eagle, parts, or feathers to the Repository.

4. 3rd Party Notifications—Transfer of Live Migratory Birds (50 CFR 21.22) —The regulations in that section authorize any person who finds a sick, injured, or orphaned migratory bird, including bald eagles and golden eagles, to take possession of the bird for immediate transport to a licensed veterinarian or federally permitted migratory bird rehabilitator. Within 48 hours after hospitalization is no longer required, live migratory birds must be transferred to a federally permitted migratory bird rehabilitator. If unable to transfer a bird within that time, authorized individuals must contact their regional migratory bird permit office for assistance in locating a permitted migratory bird rehabilitator, authorization to continue care, or a recommendation to euthanize the bird.

5. 3rd Party Notifications—Endangered and Threatened Wildlife (50 CFR 21.22) —Licensed veterinarians must notify the appropriate Ecological Services Office within 24 hours of receiving a migratory bird that is also on the List of Endangered and Threatened Wildlife (50 CFR 17.11).

6. Requests for Written Authorization—National Eagle Repository (50 CFR 22.15) —The regulations in that section authorize public museums, public scientific societies, and public zoological parks to possess lawfully acquired eagle specimens, including whole bird specimens, parts, feathers, inactive nests, and nonviable eggs, for conservation education purposes. Bald eagle and golden eagle specimens must be acquired from persons authorized by permit or regulatory authorization to possess and donate them. Authorized individuals are responsible for ensuring specimens were legally acquired. Eagle specimens salvaged after January 30, 2025 must have written authorization from the National Eagle Repository for exhibition use.

7. Agency Designation Letter (50 CFR 21.34) —The regulations in that section authorize employees of Federal, State, Territorial, and federally recognized Tribal natural resource agencies to conduct the following activities while performing their official duties without a permit: salvage, exhibition use, transport, and relocation. Individuals under the direct supervision of an agency employee ( e.g., volunteers or agents under contract to the agency) may, within the scope of their official duties, conduct the activities authorized by this authorization. An authorized individual must have a designation letter from the agency describing the activities that may be conducted by the individual and any date and location restrictions that apply.

8. Law Enforcement Authorization (50 CFR 21.40) —The regulations in that section authorize law enforcement personnel who enforce provisions of the MBTA or Eagle Act to take, acquire, possess, transport, and dispose of migratory birds, whether alive or dead, including their parts, nests, or eggs, while performing official duties and without a permit. Law enforcement personnel may designate non-law-enforcement personnel to acquire, possess, transport, or dispose of migratory birds on the behalf of law enforcement under this authorization. This designation includes recording the name and contact information of the individual designated, dates valid, activities authorized, and name and contact information of the authorizing agent.

9. 3rd Party Notifications — Federally Permitted Rehabilitator (50 CFR 21.14, 21.34) —Authorized individuals must immediately contact a federally permitted migratory bird rehabilitator and follow the rehabilitator's instructions when:

a. § 21.14—Any birds removed by trapping must be immediately released to the wild in a humane and healthful manner. However, for any bird that becomes exhausted, ill, injured, or orphaned, the authorized individual must immediately contact a federally permitted migratory bird rehabilitator and follow the rehabilitator's instructions.

b. § 21.14—Authorized individuals may remove nests, eggs, and nestlings from the interior of a human-occupied building or structure. They are encouraged to seek the assistance of a federally permitted migratory bird rehabilitator or their regional Migratory Bird Permit Office prior to removing eggs or nestlings.

c. § 21.34—Natural resource agency employees may transport sick, injured, or orphaned birds in accordance with § 21.76(a). If transport is not feasible within 24 hours, they must follow the instructions of a federally permitted migratory bird rehabilitator to provide supportive care, retain in an appropriate enclosure for up to 72 hours, or euthanize the birds.

10. Tagging Requirements (50 CFR 21.16, 21.18, 22.15) —Several regulations in this rulemaking require authorized individuals to tag specimens for identification:

a. § 21.16—Specimens intended for donation with the species, date, location of salvage, and the name and contact information of the person who salvaged the specimen. The tag must remain with the specimen.

b. § 21.18—Each migratory bird specimen must remain tagged with the species, date, location, name of the donor, and donor's authorization for acquisition. Specimen tags may be temporarily removed during educational programs.

c. § 22.15—Each eagle specimen must remain tagged with the species, date, location, name of the donor, and the donor's authorization for acquisition. Specimen tags may be temporarily removed during educational programs.

11. Law Enforcement Notifications (50 CFR 21.16, 21.32) —Several regulations in this rulemaking require authorized individuals to notify the Office of Law Enforcement if illegal activity is suspected:

a. § 21.16—Authorized individuals must notify the Service Office of Law Enforcement prior to salvaging the birds if they suspect birds were purposefully illegally killed or if five or more birds are found dead.

b. § 21.32—Authorized individuals investigating mortality events must notify the Service Office of Law Enforcement if illegal activity is suspected.

12. Verification of Legal Acquisition (50 CFR 21.18, 22.15) —Several regulations in this rulemaking require authorized individuals to verify that specimens were obtained legally:

a. § 21.18—Migratory bird specimens must be acquired from persons authorized by permit or regulatory authorization to possess and donate them. Authorized individuals are responsible for ensuring specimens were legally acquired.

b. § 22.15—Bald eagle and golden eagle specimens must be acquired from persons authorized by permit or regulatory authorization to possess and donate them. Authorized individuals are responsible for ensuring specimens were legally acquired.

13. Records Retention Requirements (50 CFR 21.16, 21.18, 21.22, 21.34, 22.15) —Regulations in this rulemaking require authorized individuals to maintain records of activities conducted under their authorization:

a. § 21.16—Authorized individuals must maintain records of all donated birds, including eagles sent to the Repository, for 5 years. Records must include species, specimen type, date, location salvaged, and recipient. At any reasonable time upon request by the Service, the authorized individual must allow the Service to inspect any birds held under this authorization and to review any records kept.

b. § 21.18—Authorized individuals must maintain accurate records of operations on a calendar-year basis and retain these records for 5 years. Records must reflect how the authorized individual meets the eligibility criteria for this authorization, the programs conducted, each specimen in possession, and, if applicable, specimen disposition. At any reasonable time upon request by the Service, the authorized individual must allow the Service to inspect any migratory bird specimens held under this regulatory authorization and review any records kept.

c. § 21.22—Licensed veterinarians must keep records for 5 years of all migratory birds held and treated under this authorization, including those euthanized. Records must include the species of bird, the type of injury, the date of acquisition, disposition ( e.g., live bird transferred, specimens destroyed, or specimens donated), and the date and cause of death, if applicable. Upon an inspection request, authorized individuals must present available specimens and records at any reasonable time.

d. § 21.34—Agencies must keep records for 5 years of activities conducted under paragraphs (a)(2) through (a)(4) of that section of the regulations. The records must include the species and number of birds, the type of activity, date, and disposition.

e. § 22.15—Authorized individuals must maintain accurate records of operations on a calendar-year basis and retain these records for 5 years. Records must reflect how the authorized individual meets the eligibility criteria for this authorization, the programs conducted, each specimen in possession, and, if applicable, specimen disposition. At any reasonable time upon request by the Service, authorized individuals must allow the Service to inspect any migratory bird specimens held under this regulatory authorization and review any records kept.

14. 3rd Party Notifications — Educational Programs (50 CFR 21.18, 22.15) —Several regulations in this rulemaking require specimens to be available for educational purposes:

a. § 21.18—Migratory bird specimens must be used for public conservation educational programs or held for public archival purposes. Programs must include information about migratory bird ecology, biology, or conservation. Specimens held for archival purposes must be properly archived and readily accessible to the public for research purposes.

b. § 22.15—Eagle specimens must be used for public educational programs or held for public archival purposes. Programs must include information about eagle ecology, biology, or conservation. Specimens held for archival purposes must be properly archived and readily accessible to the public for research purposes.

15. Notification Requirement—Current Authorizations (50 CFR 21.18) —Entities currently operating under 50 CFR 21.12(b)(1) are requested to email the Service by March 31, 2025 with the following information: (1) the entity name, physical address, and, if different, mailing address; (2) the name, title, and contact information of the principal officer who is in charge of the organization; (3) the name, title, and contact information of the primary contact the Service should use, if different than the principal officer; and (4) the following statement: “This entity is currently operating under the permit exception 50 CFR 21.12(b)(1) and intends to continue operating under the conditions of this exception until the Service publishes exhibition regulations.” This information will be used by the Service primarily to contact entities once new regulations pertaining to exhibition are final; however, the Service may also use this information to better understand the number and types of entities currently operating under this exception.

Title of Collection: Regulatory Authorizations for Migratory Bird and Eagle Possession by the General Public, Educators, and Government Agencies; 50 CFR parts 21 and 22.

OMB Control Number: 1018-0200.

Form Numbers: None.

Type of Review: New.

Respondents/Affected Public: Individuals; private sector; and State/local/Tribal governments.

Total Estimated Number of Annual Respondents: 4,800.

Total Estimated Number of Annual Responses: 4,800.

Estimated Completion Time per Response: Varies from 15 minutes to 1 hour, depending on activity.

Total Estimated Number of Annual Burden Hours: 3,310.

Respondent's Obligation: Required to obtain or retain a benefit.

Frequency of Collection: On occasion.

Total Estimated Annual Non-hour Burden Cost: None.

On June 1, 2023, we published in the Federal Register (88 FR 35809) a proposed rule (RIN 1018-BC76) that announced our intention to request OMB approval of the information collections explained above. In that proposed rule, we solicited comments for 60 days on the information collections in this submission, ending on July 31, 2023. Summaries of comments addressing the information collections contained in this rule, as well as the agency response to those comments, can be found in the Response to Public Comments section of this rule, as well as in the information collection request submitted to OMB on the RegInfo.gov website ( https://www.reginfo.gov/public/ ).

Send your written comments and suggestions on this information collection by the date indicated in DATES to the Service Information Collection Clearance Officer, U.S. Fish and Wildlife Service, MS: PRB/PERMA (JAO), 5275 Leesburg Pike, Falls Church, VA 22041-3803 (mail); or by email to Info_Coll@fws.gov. Please reference OMB Control Number 1018-0200 in the subject line of your comments.

We have analyzed this rule in accordance with the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq. ) and Department regulations at 43 CFR part 46. We find that the action fits within a class of actions listed in the categorical exclusions included in the DOI Departmental Manual at 516 DM 8.5, specifically: A.(1) Changes or amendments to an approved action when such changes have no or minor potential environmental impact; and C.(1) The issuance, denial, suspension, and revocation of permits for activities involving fish, wildlife, or plants regulated under 50 CFR chapter I, subchapter B, when such permits cause no or negligible environmental disturbance. These permits involve endangered and threatened species, species listed under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), marine mammals, exotic birds, migratory birds, eagles, and injurious wildlife. The Service considers regulatory authorizations, also called permit exceptions, to be a type of permit. “Permit” is defined in 50 CFR 10.12, and the Service considers the regulations in this final rule to be the means by which the Service describes, authorizes, and limits the activity. The authorized official is the DOI Assistant Secretary of Fish and Wildlife and Parks. Therefore, promulgation of a regulatory authorization that causes no or negligible environmental disturbance falls within the categorical exclusion for permits.

Similar activities authorized under this final rule have previously been authorized under regulatory authorizations or permits without significant environmental effects. All but one of the regulatory authorizations under this final rule either benefits living birds ( e.g., rescuing a live bird from inside of a building) or involves handling birds that died from causes unrelated to the regulatory authorization. One authorization allows law enforcement personnel to take individual migratory birds while acting under their official duties. However, the take of individual birds under those circumstances is limited and would not have population-level impacts.

Section 7 of the Endangered Species Act (ESA) of 1973, as amended (16 U.S.C. 1531 et seq. ), requires that the Secretary [of the Interior] shall review other programs administered by the Secretary and utilize such programs in furtherance of the purposes of this Act (16 U.S.C. 1536(a)(1)). It further states that the Federal agency must “ensure that any action authorized, funded, or carried out . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat” (16 U.S.C. 1536(a)(2)). Our final action of issuing regulatory authorizations for non-ESA-listed migratory birds and eagles does not authorize, fund, or carry out any activity that may affect—directly or indirectly—any ESA-listed species or their critical habitat. All activities involving live migratory birds that are also on the List of Endangered and Threatened Wildlife (50 CFR 17.11) requires additional authorization under the ESA. Within this final rule, we have included clauses where appropriate indicating that either additional authorizations are required or notification to the appropriate Ecological Services Office is required when an activity involves migratory birds that are also on the List of Endangered and Threatened Wildlife.

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), E.O. 13175, and 512 DM 2, we have evaluated potential effects on federally recognized Indian Tribes and have determined that this rule would not interfere with Tribes' abilities to manage themselves, their funds, or Tribal lands. Furthermore, this rulemaking adds provisions that expand Tribal authorization and self-governance.

E.O. 13211 addresses regulations that significantly affect energy supply, distribution, and use, and requires agencies to prepare statements of energy effects when undertaking certain actions. This rule is not a significant regulatory action under E.O. 13211, and no statement of energy effects is required.

Exports, Imports, Reporting and recordkeeping requirements, Transportation, Wildlife.

For the reasons described in the preamble, the U.S. Fish and Wildlife Service amends title 50, chapter I, subchapter B of the Code of Federal Regulations, as set forth below: