On April 24, 2026, OPM issued a proposed rule (91 FR 22070) to amend the CPP regulations under 5 CFR part 535 and adverse action regulations at 5 CFR part 752. The proposed rule had a 30-day comment period ending May 26, 2026. OPM received one substantive comment and is adopting the proposed rule without change.

Section 5377 of title 5, United States Code, authorizes CPP as a pay-setting flexibility for positions requiring expertise of an extremely high level in a scientific, technical, professional, or administrative field and that are critical to an agency's successful accomplishment of an important mission. Under this authority, OPM, in consultation with the Office of Management and Budget (OMB), may grant authority to the head of an agency to fix the rate of basic pay for one or more positions designated as critical positions. By law, critical pay may be granted or exercised only to the extent necessary to recruit or retain an individual exceptionally well qualified for the position. The critical pay rate fixed by an agency may not be less than the rate of basic pay (including any locality-based comparability payments) which would otherwise be payable for the position. OPM, in consultation with OMB, may approve critical pay authority for no more than 800 positions at any time, of which not more than 30 may be under the Executive Schedule.

Consistent with this statute, 5 CFR part 535 establishes the regulatory framework governing the request, use, and administration of the CPP authority. Section 535.103 describes the circumstances under which an agency head may exercise CPP authority and sets the limitations on pay rates that may be established. Under prior regulations, 5 CFR 535.103(a) provided that, subject to approval by OPM in consultation with OMB, an agency head may set the rate of basic pay for a critical position up to the following limits: the rate payable for level II of the Executive Schedule (EX-II) in most cases, the rate payable for EX-I when there are “exceptional circumstances,” or above the rate for EX-I in “rare circumstances” and only with the written approval of the President.

Section 535.104 establishes the process and documentation required for an agency to request use of the CPP authority. Under the law, an agency may request CPP only to the extent necessary to fill a position with an exceptionally well-qualified individual.

The current CPP authority under 5 U.S.C. 5377 was enacted as part of the Federal Employees Pay Comparability Act of 1990 (Pub. L. 101-509), which allowed OMB to authorize use of the authority in consultation with OPM. The most significant amendment to this statute was made by the Federal Workforce Flexibility Act of 2004 (Pub. L. 108-411) to switch the original roles of OMB and OPM by placing OPM in charge of decisions to approve agency requests after consulting with OMB. The law was also amended to authorize OPM to regulate the CPP authority in place of OMB. See 5 U.S.C. 5377(e)(1).

Under 5 U.S.C. 5377, the President holds two functions. Under paragraph (d)(2), the President must provide written approval to fix basic pay at a rate greater than the rate payable for level I of the Executive Schedule. Under paragraph (i)(2), at the request of an agency head, the President may designate 1 or more categories of positions within that agency to be treated as positions eligible to receive CPP.

Under 3 U.S.C. 301, the President may delegate certain functions to other officials within the executive branch. In 2006, the President expressly delegated his authorities under 5 U.S.C. 5377 to the Director of OPM in Executive Order (E.O.) 13415 (71 FR 70641). OPM issued final regulations at 5 CFR part 535 governing the critical pay authority on August 26, 2008 (73 FR 50181) that addressed OPM's authority under 5 U.S.C. 5377(i)(2) (dealing with expanding the categories of positions for which the critical pay authority may be used), as delegated by the E.O. See 5 CFR 535.104(b). However, OPM did not implement its delegated authority with regard to setting critical pay rates above the rate for EX-I under 5 U.S.C. 5377(d)(2), making the prior regulations inconsistent with the delegation framework established by E.O. 13415.

This final rule amends OPM's regulations governing the CPP authority under 5 CFR part 535 and related adverse action regulations under 5 CFR part 752. The amendments align OPM's regulations with the governing statute at 5 U.S.C. 5377 and the President's delegation of authority under E.O. 13415, while simplifying administration of the CPP authority and removing certain non-statutory requirements.

This rule revises 5 CFR 535.103 and 535.104 to remove the requirement for case-by-case Presidential approval of critical pay rates above EX-I. E.O. 13415 delegates to the Director of OPM the President's authority under 5 U.S.C. 5377(d)(2) to provide written approval of such rates. Approval authority for rates above EX-I therefore resides with the Director of OPM, who provides that written approval in consultation with OMB, and without the need for separate Presidential approval.

This rule also removes the “rare circumstances” and “exceptional circumstances” criteria from 5 CFR 535.103 through 535.105. These criteria were created by regulation, were not defined in regulation, and were not required by statute. In practice, they were difficult to apply and served as an artificial barrier to appropriate use of the authority. The statutory eligibility criteria under 5 U.S.C. 5377(b) continue to limit use of the authority to positions critical to an agency's mission and only to the extent necessary to recruit or retain an exceptionally well-qualified individual. Under the revised regulations, EX-I serves as the default maximum rate, and rates above EX-I require written approval by the Director of OPM based on objective, evidence-based justification.

This rule also removes the requirement in § 535.104(b) that agencies submit requests covering multiple positions in priority order, and revises (a) to clarify that the agency head has sole and exclusive discretion in determining whether and how to use the CPP authority.

This rule amends 5 CFR 535.106 to clarify that a critical pay rate is not considered a rate of basic pay for purposes of the General Schedule (GS) pay administration rules in 5 CFR part 531, subpart B. New paragraph (c) preserves the existing exception in § 531.221(a)(4), under which a critical pay rate may be treated as a non-GS rate of basic pay in applying the GS maximum payable rate rule. This allows an agency to set pay for an employee in a GS position at a step rate (not to exceed step 10 of the grade) based on a former critical pay rate when doing so produces a higher payable rate than the normal GS pay-setting rules.

This rule adds new paragraph (e) to 5 CFR 535.103 authorizing agencies to require employees to sign written service agreements governing future payments of CPP. OPM may also require an agency to establish a service agreement as a condition of approving critical pay authority and may specify the matters such an agreement must address.

New paragraph (f) to 5 CFR 535.103 clarifies that an employee has no right to grieve or appeal a decision to reduce, not increase, or terminate a CPP rate, although nothing in this paragraph limits any right or remedy provided by another applicable law. This rule also amends 5 CFR part 752 by adding § 752.401(b)(18) to clarify that a reduction or termination of a CPP rate is not an adverse action under chapter 75 when the employee was informed that the rate is approved on a time-limited basis, subject to annual review and reapproval, and may be reduced or terminated if no longer needed. This exclusion reflects that CPP is a discretionary, time-limited pay-setting framework under 5 U.S.C. 5377, rather than a disciplinary “reduction in pay” that triggers chapter 75 procedures and Merit Systems Protection Board appeal rights. It uses the same “notice and limited duration” approach already employed elsewhere in part 752 (see, e.g., § 752.401(b)(12) (termination of temporary or term promotions)). This amendment is also consistent with 5 U.S.C. 5377(e), which authorizes OPM to prescribe the terms and conditions under which CPP authority is exercised and terminated.

The provisions of this rule are severable. The amendments address distinct aspects of the administration of the CPP authority and are designed to operate independently consistent with 5 U.S.C. 5377. If any provision is held invalid or unenforceable, the remaining provisions are intended to remain in effect. For example, if a court were to find the service agreement provisions in §  535.103(e) to be invalid or unenforceable, agencies could continue to apply the revised pay-setting and approval framework under §§  535.103(a), 535.104, and 535.105 without impact. Conversely, if a court were to find the pay-setting and approval framework under §§  535.103(a), 535.104, and 535.105 to be invalid or unenforceable, agencies could continue to apply the service agreement provisions in §  535.103(e) without impact.

Commenter 0002 expressed general support for aligning the CPP regulations with the delegation framework established by E.O. 13415. The commenter noted that transferring approval authority for pay rates above the rate for level I of the Executive Schedule from the President to the Director of OPM would reduce processing time and administrative burden for agencies. The commenter also acknowledged that removing the “rare circumstances” threshold would likely increase the volume of agency requests and make the CPP authority a more competitive tool relative to other pay flexibilities. The commenter cautioned that increased utilization could cause agencies to approach the statutory cap of 800 critical pay positions more quickly and urged OPM and OMB to maintain rigorous oversight to ensure approvals remain limited to truly critical, high-impact roles.

OPM agrees with the commenter's general assessment. Consolidating approval authority through OPM, in consultation with OMB, and removing the “rare circumstances” and “exceptional circumstances” criteria are expected to reduce administrative burden, make the authority more accessible to agencies with mission-critical staffing needs, and make critical pay a more competitive compensation tool. OPM acknowledges the concern that these changes may result in an increased number of requests and approvals that reach the 800-position limit in statute more quickly without proper oversight. OPM is not changing the regulations in response to the commenter's cautions. Several existing requirements and factors will constrain utilization and promote oversight: the requirement that critical pay requests be approved by OPM, in consultation with OMB under 5 U.S.C. 5377(c); the statutory requirement that critical pay be used only to the extent necessary to recruit or retain an exceptionally well-qualified individual under 5 U.S.C. 5377(b); and the requirement for objective market-based justification and the written approval of the Director of OPM for all rates above EX-I. In addition, OPM will continue to monitor utilization through its annual report to Congress under 5 U.S.C. 5377(h) and 5 CFR 535.107.

OPM is issuing this final rule pursuant to 5 U.S.C. 5377 and E.O. 13415. The purpose of amending these regulations is to align them with existing authority delegated to the Director of OPM.

Under the CPP authority, not more than 800 positions may be covered Governmentwide at any one time, and not more than 30 active authorizations may be for positions otherwise paid rates of pay under the Executive Schedule. In 2025, OPM continued to authorize CPP for 65 positions in 15 agencies. However, only 9 of those agencies reported using the CPP authority during 2025 for 25 total incumbents.

On May 29, 2026, the President issued a memorandum titled “Approving Critical Position Pay Authority for National Security Investment Workforce,” authorizing the use of CPP for up to 400 positions supporting investment programs related to national security and authorizing OPM, in consultation with OMB, to approve agency requests at rates of basic pay of up to $400,000, consistent with market comparability and national security urgency. See https://www.whitehouse.gov/presidential-actions/2026/05/approving-critical-position-pay-authority-for-national-security-investment-workforce/. These 400 positions are subject to the 800-position Governmentwide statutory cap under 5 U.S.C. 5377(f). OPM, in consultation with OMB, will allocate the positions to executive departments and agencies and oversee their use to ensure CPP is used only to the extent required to recruit or retain exceptionally well-qualified individuals consistent with 5 U.S.C. 5377(b).

Considering the combined effect of existing authorizations, the May 29, 2026, Presidential memorandum, and the changes made by this final rule, OPM anticipates an increase in use of the CPP authority compared to historical levels. However, given the statutory cap of 800 positions Governmentwide and the targeted nature of approved positions, OPM does not anticipate that this final rule will substantially impact local economies or have a large impact on local labor markets.

OPM expects that the amendments in this final rule may result in some increase in the use of the CPP authority, including approval for certain positions at rates above the rate for level I of the Executive Schedule (EX-I). Removing the requirement for case-by-case Presidential approval and eliminating the “rare circumstances” and “exceptional circumstances” criteria reduce administrative barriers and make the authority more accessible to agencies.

In the proposed rule, OPM presented an illustrative cost estimate based on the statutory cap of 800 authorized positions Governmentwide, assuming up to one-half could be approved above EX-I at an average increase of $50,000 to $100,000 per position. The May 29, 2026, Presidential memorandum described in the Impact section above now represents the most significant driver of utilization above EX-I and provides a more defined basis for estimating cost impacts. OPM has therefore updated its estimate to reflect the parameters established by that memorandum.

OPM has developed an estimated cost range based on assumptions about how many of the 400 authorized positions will be filled. Each position filled at the $400,000 maximum rate would carry an incremental cost above EX-I of approximately $146,900 annually. On that basis, OPM estimates aggregate incremental costs ranging from approximately $44.1 million annually as a lower bound (if 300 authorized positions are filled) to approximately $58.8 million annually as an upper bound (if all 400 positions are filled). Actual costs will depend on agency-specific decisions, including the number of positions ultimately filled and the rates at which they are set, and may fall outside this range. Average pay rates below the $400,000 ceiling would result in lower aggregate costs than the range presented.

The regulatory changes in this rule may also facilitate above-EX-I approvals outside the scope of the May 29, 2026, Presidential memorandum. OPM expects any incremental cost beyond the estimate above to be modest. Several factors are expected to constrain overall cost impact: the 800-position statutory cap, the OPM approval requirement in consultation with OMB, budgetary constraints, and the statutory “necessary to recruit or retain” standard under 5 U.S.C. 5377(b).

This final rule eliminates non-statutory procedural constraints, improves the timely use of CPP authority for mission-essential roles, and reduces administrative burden and approval delays. OPM will continue to monitor appropriate use of authorized critical pay positions through its annual report to Congress requirement under 5 U.S.C. 5377(h) and 5 CFR 535.107.

OPM is waiving the 30-day delayed effective date of this final rule pursuant to 5 U.S.C. 553(d)(1), as this rule relieves restrictions that are not required by statute. Prompt implementation of the final rule will assist agencies in filling critical skills gaps and meeting recruitment and retention needs essential to supporting agency missions. See, e.g., “Building the AI Workforce of the Future,” Dec. 15, 2025, available at https://www.opm.gov/chcoc/latest-memos/building-the-ai-workforce-of-the-future.pdf; “Human Resources Flexibilities for Recruiting and Retaining Information Technology, Cyber, Artificial Intelligence, and Other Technical Employees,” Dec. 17, 2025, available at https://www.opm.gov/chcoc/latest-memos/human-resources-flexibilities-for-recruiting-and-retaining-information-technology-cyber-artificial-intelligence-and-other-technical-employees.pdf; and “Approving Critical Position Pay Authority for National Security Investment Workforce,” May 29, 2026, available at https://www.whitehouse.gov/presidential-actions/2026/05/approving-critical-position-pay-authority-for-national-security-investment-workforce/.

OPM has examined the impact of this rule as required by E.O.s 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, distributive impacts, and equity). A regulatory impact analysis must be prepared for rules that have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities. This rulemaking does not reach that threshold but has otherwise been designated as a “significant regulatory action” under section 3(f) of E.O. 12866. This rule is not considered a regulatory action under E.O. 14192 because it imposes no more than de minimis costs.

The Director of OPM certifies that this rule would not have a significant economic impact on a substantial number of small entities as it would only impact Federal agencies and employees.

OPM has examined this rule in accordance with E.O. 13132, Federalism, and has determined that this rule will not have any negative impact on the rights, roles and responsibilities of State, local, or Tribal governments.

This rulemaking meets the applicable standard set forth in section 3(a) and (b)(2) of E.O. 12988.

This rulemaking will not result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year in 1995 dollars, updated annually for inflation. That threshold is currently approximately $206 million. This rulemaking will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (known as the Congressional Review Act or CRA) (5 U.S.C. 801 et seq. ) requires most final rules to be submitted to Congress before taking effect. OPM will submit to Congress and the Comptroller General of the United States a report regarding the issuance of this rule before its effective date. The Office of Information and Regulatory Affairs in the Office of Management and Budget has determined that this rule is not a major rule as defined by the CRA (5 U.S.C. 804).

This rulemaking does not impose any reporting or record-keeping requirements subject to the Paperwork Reduction Act.

The Director of OPM, Scott Kupor, reviewed and approved this document and has authorized the undersigned to electronically sign and submit this document to the Office of the Federal Register for publication.

Accordingly, OPM amends 5 CFR parts 535 and 752 as follows:

Please refer to Docket ID NRC-2026-2806 when contacting the NRC about the availability of information for this action. You may obtain publicly available information related to this action by any of the following methods:

• Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2026-2806. Address questions about NRC dockets to Helen Chang, telephone: 301-415-3228, email: Helen.Chang@nrc.gov. For technical questions contact the individuals listed in the FOR FURTHER INFORMATION CONTACT section of this document.

• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly available documents online in the ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, select “Begin ADAMS Public Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, at 301-415-4737, or by email to PDR.Resource@nrc.gov. For the convenience of the reader, instructions about obtaining materials referenced in this document are provided in the “Availability of Documents” section.

• NRC's PDR: The PDR, where you may examine and order copies of publicly available documents, is open by appointment. To make an appointment to visit the PDR, please send an email to PDR.Resource@nrc.gov or call 1-800-397-4209 or 301-415-4737, between 8 a.m. and 4 p.m. eastern time, Monday through Friday, except Federal holidays.

The NRC encourages electronic comment submission through the Federal rulemaking website ( https://www.regulations.gov ). Please include Docket ID NRC-2026-2806 in your comment submission.

The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at https://www.regulations.gov as well as enter the comment submissions into ADAMS. The NRC does not routinely edit comment submissions to remove identifying or contact information.

If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.

This rule is limited to the changes contained in Amendment No. 19 to Certificate of Compliance No. 1004 and does not include other aspects of the TN Americas, LLC Standardized NUHOMS® Horizontal Modular Storage System for Irradiated Nuclear Fuel system design. The NRC is using the “direct final rule procedure” to issue this amendment because it represents a limited and routine change to an existing certificate of compliance that is expected to be non-controversial. Adequate protection of public health and safety continues to be reasonably assured. The amendment to the rule will become effective on November 9, 2026. However, if the NRC receives any significant adverse comment on this direct final rule by September 25, 2026, then the NRC will publish a document that withdraws this action and will subsequently address the comments received in a final rule as a response to the companion proposed rule published in the Proposed Rules section of this issue of the Federal Register or as otherwise appropriate. In general, absent significant modifications to the proposed revisions requiring republication, the NRC will not initiate a second comment period on this action.

A significant adverse comment is a comment where the commenter explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. A comment is adverse and significant if:

(1) The comment opposes the rule and provides a reason sufficient to require a substantive response in a notice-and-comment process. For example, a substantive response is required when:

(a) The comment causes the NRC to reevaluate (or reconsider) its position or conduct additional analysis;

(b) The comment raises an issue serious enough to warrant a substantive response to clarify or complete the record; or

(c) The comment raises a relevant issue that was not previously addressed or considered by the NRC.

(2) The comment proposes a change or an addition to the rule, and it is apparent that the rule would be ineffective or unacceptable without incorporation of the change or addition.

(3) The comment causes the NRC to make a change (other than editorial) to the rule, certificate of compliance, or technical specifications.

Section 218(a) of the Nuclear Waste Policy Act of 1982, as amended, requires that “[t]he Secretary [of the Department of Energy] shall establish a demonstration program, in cooperation with the private sector, for the dry storage of spent nuclear fuel at civilian nuclear power reactor sites, with the objective of establishing one or more technologies that the [Nuclear Regulatory] Commission may, by rule, approve for use at the sites of civilian nuclear power reactors without, to the maximum extent practicable, the need for additional site-specific approvals by the Commission.” Section 133 of the Nuclear Waste Policy Act states, in part, that “[t]he Commission shall, by rule, establish procedures for the licensing of any technology approved by the Commission under Section 219(a) [sic: 218(a)] for use at the site of any civilian nuclear power reactor.”

To implement this mandate, the Commission approved dry storage of spent nuclear fuel in NRC-approved casks under a general license by publishing a final rule that added a new subpart K in part 72 of title 10 of the Code of Federal Regulations (10 CFR) entitled “General License for Storage of Spent Fuel at Power Reactor Sites” (55 FR 29181; July 18, 1990). This rule also established a new subpart L in 10 CFR part 72 entitled “Approval of Spent Fuel Storage Casks,” which contains procedures and criteria for obtaining NRC approval of spent fuel storage cask designs. The NRC subsequently issued a final rule on December 22, 1994 (59 FR 65898) that approved the Standardized NUHOMS® Horizontal Modular Storage System for Irradiated Nuclear Fuel System design and added it to the list of NRC-approved cask designs in § 72.214 as Certificate of Compliance No.1004.

On November 5, 2024, and as supplemented on February 20, 2025, and August 26, 2025, TN Americas, LLC submitted a request to the NRC to amend Certificate of Compliance No. 1004 for the Standardized NUHOMS® Horizontal Modular Storage System for Irradiated Nuclear Fuel. Renewed Amendment No. 19 revises the certificate and technical specifications to provide a 61BTH basket design using staggered plates similar to the 24PTH Type 3 basket to simplify construction, reduce weight, and improve fabricability; and to provide editorial corrections, consistency and terminology clarifications for Updated Final Safety Analysis Report Technical Specifications, Appendix A, B, and C.

As documented in the preliminary safety evaluation report, the NRC performed a safety evaluation of the proposed certificate of compliance amendment request. The NRC determined that this amendment does not reflect a significant change in design or fabrication of the cask. Specifically, the NRC determined that the design of the cask would continue to maintain confinement, shielding, and criticality control in the event of each evaluated accident condition. In addition, any resulting occupational exposure or offsite dose rates from the implementation of Amendment No. 19 would remain well within the limits specified by 10 CFR part 20, “Standards for Protection Against Radiation.” Thus, the NRC found there will be no significant change in the types or amounts of any effluent released, no significant increase in the individual or cumulative radiation exposure, and no significant increase in the potential for or consequences from radiological accidents.

The NRC staff determined that the amended Standardized NUHOMS® Horizontal Modular Storage System for Irradiated Nuclear Fuel cask design, when used under the conditions specified in the certificate of compliance, the technical specifications, and the NRC's regulations, will meet the requirements of 10 CFR part 72; therefore, adequate protection of public health and safety will continue to be reasonably assured. When this direct final rule becomes effective, persons who hold a general license under § 72.210 may, consistent with the license conditions under § 72.212, load spent nuclear fuel into Standardized NUHOMS® Horizontal Modular Storage System for Irradiated Nuclear Fuel casks that meet the criteria of Amendment No. 19 to Certificate of Compliance No. 1004.

The National Technology Transfer and Advancement Act of 1995 (Pub. L. 104-113) requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this direct final rule, the NRC revises the Standardized NUHOMS® Horizontal Modular Storage System for Irradiated Nuclear Fuel Cask System design listed in § 72.214, “List of approved spent fuel storage casks.” This action does not constitute the establishment of a standard that contains generally applicable requirements.

Under the “Agreement State Program Policy Statement” approved by the Commission on October 2, 2017, and published in the Federal Register on October 18, 2017 (82 FR 48535), this rule is classified as Compatibility Category NRC—Areas of Exclusive NRC Regulatory Authority. The NRC program elements in this category are those that relate directly to areas of regulation reserved to the NRC by the Atomic Energy Act of 1954, as amended, or the provisions of 10 CFR chapter I. Therefore, compatibility is not required for program elements in this category.

The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, and well-organized manner. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31885).

Under the National Environmental Policy Act of 1969, as amended, and the NRC's regulations in 10 CFR part 51, “Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions,” the NRC has determined that this direct final rule, if adopted, would not be a major Federal action significantly affecting the quality of the human environment and, therefore, an environmental assessment or environmental impact statement is not required (per 10 CFR 51.22(a)(12)). The NRC has made a finding of no significant impact on this basis.

The action is to amend § 72.214 to revise the TN Americas, LLC Standardized NUHOMS® Horizontal Modular Storage System for Irradiated Nuclear Fuel listing within the “List of approved spent fuel storage casks” to include Amendment No. 19 to Certificate of Compliance No. 1004.

This direct final rule amends the certificate of compliance for the TN Americas, LLC Standardized NUHOMS® Horizontal Modular Storage System for Irradiated Nuclear Fuel design within the list of approved spent fuel storage casks to allow power reactor licensees to store spent fuel at reactor sites in casks with the approved modifications under a general license. Specifically, Amendment No. 19 revises the certificate of compliance as described in Section IV, “Discussion of Changes,” of this document, for the use of the Standardized NUHOMS® Horizontal Modular Storage System.

On July 18,1990 (55 FR 29181), the NRC issued an amendment to 10 CFR part 72 to provide for the storage of spent fuel under a general license in cask designs approved by the NRC. The potential environmental impact of using NRC-approved storage casks was analyzed in the environmental assessment for the 1990 final rule. The environmental assessment for this Amendment No. 19 tiers off of the environmental assessment for the July 18, 1990, final rule. Tiering on past environmental assessments is a standard process under the National Environmental Policy Act of 1969, as amended.

The TN Americas, LLC Standardized NUHOMS® Horizontal Modular Storage System for Irradiated Nuclear Fuel is designed to mitigate the effects of design basis accidents that could occur during storage. Design basis accidents account for human-induced events and the most severe natural phenomena reported for the site and surrounding area. Postulated accidents analyzed for an independent spent fuel storage installation, the type of facility at which a holder of a power reactor operating license would store spent fuel in casks in accordance with 10 CFR part 72, can include tornado winds and tornado-generated missiles, a design basis earthquake, a design basis flood, an accidental cask drop, lightning effects, fire, explosions, and other incidents.

This amendment does not reflect a significant change in design or fabrication of the cask. Because there are no significant design or process changes, any resulting occupational exposure or offsite dose rates from the implementation of Amendment No. 19 would remain well within the 10 CFR part 20 limits. The NRC has also determined that the design of the cask as modified by this rule would maintain confinement, shielding, and criticality control in the event of an accident. Therefore, the proposed changes will not result in any radiological or non-radiological environmental impacts that significantly differ from the environmental impacts evaluated in the environmental assessment supporting the July 18, 1990, final rule. There will be no significant change in the types or significant revisions in the amounts of any effluent released, no significant increase in the individual or cumulative radiation exposures, and no significant increase in the potential for, or consequences from, radiological accidents. The NRC documented its safety findings in the preliminary safety evaluation report.

The alternative to this action is to deny approval of Amendment No. 19 and not issue the direct final rule. Consequently, any 10 CFR part 72 general licensee that seeks to load spent nuclear fuel into The TN Americas, LLC Standardized NUHOMS® Horizontal Modular Storage System for Irradiated Nuclear Fuel in accordance with the changes described in proposed Amendment No. 19 would have to request an exemption from the requirements of §§ 72.212 and 72.214. Under this alternative, interested licensees would have to prepare, and the NRC would have to review, a separate exemption request, thereby increasing the administrative burden upon the NRC and the costs to each licensee. The environmental impacts would be the same as the proposed action.

Approval of Amendment No. 19 to Certificate of Compliance No. 1004 would result in no irreversible and irretrievable commitments of Federal resources.

No agencies or persons outside the NRC were contacted in connection with the preparation of this environmental assessment.

The environmental impacts of the action have been reviewed under the requirements in the National Environmental Policy Act of 1969, as amended, and the NRC's regulations in subpart A of 10 CFR part 51, “Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions.” Based on the foregoing environmental assessment, the NRC concludes that this direct final rule, “List of Approved Spent Fuel Storage Casks: TN Americas LLC, Standardized NUHOMS® Horizontal Modular Storage System for Irradiated Nuclear Fuel, Certificate of Compliance No. 1004, Renewed Amendment No. 19,” will not have a significant effect on the human environment. Therefore, the NRC has determined that an environmental impact statement is not necessary for this direct final rule.

Executive Order (E.O.) 12866, as amended by E.O. 14215, provides that the Office of Information and Regulatory Affairs (OIRA) will determine whether a regulatory action is significant as defined by E.O. 12866 and will review significant regulatory actions. OIRA determined that this direct final rule is not a significant regulatory action under E.O. 12866.

This direct final rule does not contain any new or amended collections of information subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). Existing collections of information were approved by the Office of Management and Budget, approval number 3150-0132.

The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection requirement unless the requesting document displays a currently valid Office of Management and Budget control number.

Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the NRC certifies that this direct final rule will not, if issued, have a significant economic impact on a substantial number of small entities. This direct final rule affects only nuclear power plant licensees and TN Americas LLC. These entities do not fall within the scope of the definition of small entities set forth in the Regulatory Flexibility Act or the size standards established by the NRC (§ 2.810).

On July 18, 1990 (55 FR 29181), the NRC issued an amendment to 10 CFR part 72 to provide for the storage of spent nuclear fuel under a general license in cask designs approved by the NRC. Any nuclear power reactor licensee can use NRC-approved cask designs to store spent nuclear fuel if (1) it notifies the NRC in advance; (2) the spent fuel is stored under the conditions specified in the cask's certificate of compliance; and (3) the conditions of the general license are met. A list of NRC-approved cask designs is contained in § 72.214. On December 22, 1994 (59 FR 65898), the NRC issued an amendment to 10 CFR part 72 that approved Standardized NUHOMS® Horizontal Modular Storage System for Irradiated Nuclear Fuel by adding it to the list of NRC-approved cask designs in § 72.214.

On November 5, 2024, and as supplemented on February 20, 2025, and August 26, 2025, TN Americas, LLC submitted a request to amend Certificate of Compliance No. 1004 for the Standardized NUHOMS® Horizontal Modular Storage System for Irradiated Nuclear Fuel as described in Section IV, “Discussion of Changes,” of this document.

The alternative to this action is to withhold approval of Renewed Amendment No. 19 and to require any 10 CFR part 72 general licensee seeking to load spent nuclear fuel into the TN Americas, LLC Standardized NUHOMS® Horizontal Modular Storage System for Irradiated Nuclear Fuel under the changes described in Renewed Amendment No. 19 to request an exemption from the requirements of §§ 72.212 and 72.214. Under this alternative, each interested 10 CFR part 72 licensee would have to prepare, and the NRC would have to review, a separate exemption request, thereby increasing the administrative burden upon the NRC and the costs to each licensee.

Approval of this direct final rule is consistent with previous NRC actions. Further, as documented in the preliminary safety evaluation report and environmental assessment, this direct final rule will have no adverse effect on public health and safety or the environment. This direct final rule has no significant identifiable impact or benefit on other government agencies. Based on this regulatory analysis, the NRC concludes that the requirements of this direct final rule are commensurate with the NRC's responsibilities for public health and safety and the common defense and security. No other available alternative is believed to be as satisfactory; therefore, this action is recommended.

The NRC has determined that the backfit rule (§ 72.62) does not apply to this direct final rule. Therefore, a backfit analysis is not required. This direct final rule revises Certificate of Compliance No. 1004 for the TN Americas, LLC Standardized NUHOMS® Horizontal Modular Storage System for Irradiated Nuclear Fuel, as currently listed in § 72.214. The revision consists of the changes in Amendment No. 19 previously described, as set forth in the revised certificate of compliance and technical specifications.

Amendment No. 19 to Certificate of Compliance No. 1004 for the TN Americas, LLC Standardized NUHOMS® Horizontal Modular Storage System for Irradiated Nuclear Fuel was initiated by TN Americas, LLC and was not submitted in response to new NRC requirements, or an NRC request for amendment. Amendment No. 19 applies only to new casks fabricated and used under Amendment No. 19. These changes do not affect existing users of the TN Americas, LLC Standardized NUHOMS® Horizontal Modular Storage System for Irradiated Nuclear Fuel, and the current Amendment No. 18 continues to be effective for existing users. While current users of this storage system may comply with the new requirements in Amendment No. 19, this would be a voluntary decision on the part of current users.

For these reasons, Amendment No. 19 to Certificate of Compliance No. 1004 does not constitute backfitting under § 72.62 or § 50.109(a)(1), or otherwise represent an inconsistency with the issue finality provisions applicable to combined licenses in 10 CFR part 52. Accordingly, the NRC has not prepared a backfit analysis for this rulemaking.

This direct final rule is not a rule as defined in the Congressional Review Act.

The documents identified in the following table are available to interested persons as indicated.

The NRC may post materials related to this document, including public comments, on the Federal rulemaking website at https://www.regulations.gov under Docket ID NRC-2026-2806. In addition, the Federal rulemaking website allows members of the public to receive alerts when changes or additions occur in a docket folder. To subscribe: (1) navigate to the docket folder (NRC-2026-2806); (2) click the “Subscribe” link; and (3) enter an email address and click on the “Subscribe” link.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; the Nuclear Waste Policy Act of 1982, as amended; and 5 U.S.C. 552 and 553; the NRC is adopting the following amendments to 10 CFR part 72:

On May 16, 2025, DOE published a direct final rule. 90 FR 20769. DOE stated in that direct final rule that if significant adverse comments were received by June 16, 2025, DOE would withdraw the direct final rule. Id. On July 14, 2025, DOE published a document delaying the effective date to consider comments submitted in response to the direct final rule. 90 FR 31137.

In this document, DOE is further extending the effective date in order to follow the Department of Justice direction on the topic of the direct final rule under Executive Order 14281, “Restoring Equality of Opportunity and Meritocracy” and Executive Order 12250, “Leadership and Coordination of Nondiscrimination Laws.” 90 FR 17537 (April 28, 2025); 45 FR 72995 (Nov. 4, 1980).

To the extent that 5 U.S.C. 553 applies to this action, it is exempt from notice and comment because it constitutes a rule of procedure under 5 U.S.C. 553(b)(A) and for which no notice or hearing is required by statute. Additionally, this action is not a “substantive rule” for which a 30-day delay in effective date is required under 5 U.S.C. 553(d).

This document of the Department of Energy was signed on August 24, 2026, by Chris Wright, Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

On July 24, 2026, FCA issued a final rule amending FCA's regulatory high-risk loan performance categories by removing “Formally restructured loans (TDR),” also known as troubled debt restructurings. In accordance with 12 U.S.C. 2252(c)(1), the final rule provided the regulation would become effective 30 days after publication in the Federal Register during which either or both houses of Congress are in session. Based on the records of the sessions of Congress, the effective date of the regulation is August 24, 2026.

To comply with the Do-Not-Call Registry Fee Extension Act of 2007 (Pub. L. 110-188, 122 Stat. 635, codified at 15 U.S.C. 6152) (“Act”), the Commission is amending the TSR, which is contained in 16 CFR part 310, by updating the fees entities are charged for accessing the Registry. Specifically, the revised rule increases (1) the annual fee for access to the Registry for each area code of data from $82 to $85 per area code, and (2) the maximum amount that will be charged to any single entity for accessing area codes of data from $22,626 to $23,425. Entities may add area codes during the second six months of their annual subscription period, and the fee for those additional area codes increases from $41 to $43.

These increases are in accordance with the Act, which specifies that beginning after fiscal year 2009, the dollar amounts charged shall be increased by an amount equal to the amounts specified in the Act, multiplied by the percentage (if any) by which the average of the monthly consumer price index (for all urban consumers published by the Department of Labor) (“CPI”) for the most recently ended 12-month period ending on June 30 exceeds the CPI for the 12-month period ending June 30, 2008. The Act also states that any increase shall be rounded to the nearest dollar and that there shall be no increase in the dollar amounts if the change in the CPI since the last fee increase is less than one percent. For fiscal year 2009, the Act specified that the original annual fee for access to the Registry for each area code of data was $54 per area code, or $27 per area code of data during the second six months of an entity's annual subscription period, and that the maximum amount that would be charged to any single entity for accessing area codes of data would be $14,850.

The determination of whether a fee change is required and the amount of the fee changes involves a two-step process. First, to determine whether a fee change is required, we measure the change in the CPI from the time of the previous increase in fees. There was an increase in the fees for fiscal year 2026. Accordingly, we calculated the change in the CPI since last year, and the increase was 3.5 percent. Because this change is over the one percent threshold, the fees will change for fiscal year 2027.

Second, to determine how much the fees should increase this fiscal year, we use the calculation specified by the Act set forth above: the percentage change in the baseline CPI applied to the original fees for fiscal year 2009. The average value of the CPI for July 1, 2007, to June 30, 2008, was 211.702; the average value for July 1, 2025, to June 30, 2026, was 333.952, an increase of 57.75 percent. Applying the 57.75 percent increase to the base amount from fiscal year 2009, leads to a $85 fee for access to a single area code of data for a full year for fiscal year 2027, an increase of $3 from last year. The actual amount is $85.18 but when rounded, pursuant to the Act, $85 is the appropriate fee. The fee for accessing an additional area code for a half year increases by two dollars to $43 (rounded from $42.59). The maximum amount charged increases to $23,425 (rounded from $23,425.32).

Under the Administrative Procedure Act (5 U.S.C. 553(b)), an agency may waive the normal notice and comment requirements if it finds, for good cause, that they are impracticable, unnecessary, or contrary to the public interest. The fee adjustments set forth in this final rule are mandated by the Do-Not-Call Registry Fee Extension Act of 2007. Accordingly, the amendments to the TSR are merely technical in nature, making notice and comment unnecessary and contrary to the public interest. See 5 U.S.C. 553(b). For this reason, the requirements of the Regulatory Flexibility Act also do not apply. See 5 U.S.C. 603, 604.

Pursuant to the Paperwork Reduction Act, 44 U.S.C. 3501-3521, the Office of Management and Budget (“OMB”) approved the information collection requirements in the TSR and assigned the following existing OMB Control Number: 3084-0169. The amendments outlined in this final rule pertain only to the fee provision (§ 310.8) of the TSR and will not establish or alter any record keeping, reporting, or third-party disclosure requirements elsewhere in the TSR.

Accordingly, the Federal Trade Commission amends part 310 of title 16 of the Code of Federal Regulations as follows:

The Drug Enforcement Administration (DEA) issues a temporary scheduling order  1 (in the form of a temporary amendment) to add three 7-hydroxymitragynine-related substances, including their isomers, esters, ethers, salts, and salts of isomers, esters, and ethers, whenever the existence of such isomers, esters, ethers, and salts is possible, to schedule I under the Controlled Substances Act (CSA):

• Methyl ( E )-2-((1′ S, 6′ S, 7′S)-6′-ethyl-4-methoxy-3-oxo-3′,5′,6′,7′,8′,8 a ′-hexahydro-2′ H -spiro[indoline-2,1′-indolizine]-7′-yl)-3-methoxyacrylate (commonly known as mitragynine pseudoindoxyl). Since nomenclature of this substance is not internationally standardized, compounds of this structure, regardless of numerical designation of atomic positions are covered.

• Methyl ( E )-2-((2 S, 3 S, 7 aS, 12 aR, 12 bS )-3-ethyl-7 a -hydroxy-8-methoxy-1,2,3,4,6,7,7 a, 12,12 a, 12 b -decahydroindolo[2,3- a ]quinolizin-2-yl)-3-methoxyacrylate (commonly known as MGM-15; also known as dihydro-7-hydroxymitragynine). Since nomenclature of this substance is not internationally standardized, compounds of this structure, regardless of numerical designation of atomic positions are covered.

• Methyl ( E )-2-((2 S, 3 S, 7 aS, 12 aR, 12b S )-3-ethyl-9-fluoro-7 a -hydroxy-8-methoxy-1,2,3,4,6,7,7 a, 12,12 a, 12 b -decahydroindolo[2,3- a ]quinolizin-2-yl)-3-methoxyacrylate (commonly known as MGM-16; also known as 9-fluoro-dihydro-7-hydroxymitragynine; or 10-fluoro-dihydro-7-hydroxymitragynine (depending on numbering convention). Since nomenclature of this substance is not internationally standardized, compounds of this structure, regardless of numerical designation of atomic positions are covered.

The CSA provides the Attorney General with the authority to temporarily place a substance in schedule I of the CSA for two years without regard to the requirements of 21 U.S.C. 811(b), if he finds that such action is necessary to avoid an imminent hazard to public safety. 2 In addition, if proceedings to control a substance are initiated under 21 U.S.C. 811(a)(1) while the substance is temporarily controlled under section 811(h), the Attorney General may extend the temporary scheduling for up to one year. 3

Where the necessary findings are made, a substance may be temporarily scheduled if it is not listed in any other schedule under 21 U.S.C. 812, or if there is no exemption or approval in effect for the substance under section 505 of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 355. 4 The Attorney General has delegated scheduling authority under 21 U.S.C. 811 to the Administrator of DEA (Administrator). 5

The CSA requires the Administrator to notify the Secretary of the Department of Health and Human Services (HHS) of an intent to temporarily place a substance in schedule I of the CSA ( i.e., to issue a temporary scheduling order). 6 By letter dated December 15, 2025, the Administrator transmitted the required notice to place mitragynine pseudoindoxyl, MGM-15, and MGM-16 in schedule I on a temporary basis to the Assistant Secretary for Health of HHS (Assistant Secretary). 7 By letter dated January 20, 2026, the Assistant Secretary responded to this notice and advised that, based on a review by the Food and Drug Administration (FDA), there were currently no investigational new drug applications (IND) or approved new drug applications (NDA) for mitragynine pseudoindoxyl, MGM-15, and MGM-16. The Assistant Secretary also stated that HHS had no objection to the temporary placement of these substances in schedule I of the CSA.

DEA has taken into consideration the Assistant Secretary's comments as required by 21 U.S.C. 811(h)(4). DEA has found the control of mitragynine pseudoindoxyl, MGM-15, and MGM-16 in schedule I on a temporary basis is necessary to avoid an imminent hazard to public safety.

As required by 21 U.S.C. 811(h)(1)(A), DEA published a notice of intent (NOI) to temporarily schedule mitragynine pseudoindoxyl, MGM-15, and MGM-16 in the Federal Register on July 6, 2026. 8 That NOI discussed findings from DEA's three-factor analysis dated May 2026, which DEA made available on www.regulations.gov.

To find that temporarily placing a substance in schedule I of the CSA is necessary to avoid an imminent hazard to public safety, the Administrator must consider three of the eight factors set forth in 21 U.S.C. 811(c): the substance's history and current pattern of abuse; the scope, duration and significance of abuse; and what, if any, risk there is to public health. 9 Consideration of these factors includes any information indicating actual abuse, diversion from legitimate channels, and clandestine importation, manufacture, or distribution of mitragynine pseudoindoxyl, MGM-15, and MGM-16. 10

Substances meeting the statutory requirements for temporary scheduling may only be placed in schedule I. 11 Substances in schedule I have high potential for abuse, no currently accepted medical use in treatment in the United States, 12 and a lack of accepted safety for use under medical supervision. 13

The prevalence and misuse of Mitragyna speciosa (commonly known as kratom) and its psychoactive alkaloids, including mitragynine and 7-hydroxymitragynine, have led to the proliferation of commercial products containing opioids chemically synthesized from mitragynine or 7-hydroxymitragynine. In recent years, mitragynine pseudoindoxyl, which is a chemical rearrangement product of 7-hydroxymitragynine, and MGM-15, which is a derivative of 7-hydroxymitragynine, have recently emerged on the Mitragyna speciosa consumer markets. MGM-16 is a highly potent opioid and shares a similar pharmacological profile with mitragynine pseudoindoxyl and MGM-15. The chemical scaffolds of mitragynine or 7-hydroxymitragynine were used in scientific research to develop mitragynine pseudoindoxyl, MGM-15, or MGM-16 via chemical modifications of purified isolates. Evidence from the Mitragyna speciosa retail markets demonstrates that mitragynine pseudoindoxyl and MGM-15 have transitioned from experimental substances studied in research to widely available commercial products. These products are commonly sold in different forms such as powders, tablets, and liquid shots. This is a significant evolution from the traditional administration of Mitragyna speciosa, which was once restricted to either chewing raw leaves or steeping the leaves into water decoctions and teas.

These products are sold under numerous brand names like Kama, Hydroxie, Fruity Perks, and Happie Tabs, 14 and they are easily purchased on the internet, as well as in gas stations, corner shops, and vape shops. These products are available in consumer-friendly forms, including flavored chewable tablets, which increases their appeal to a broader demographic. Also, the aggressive marketing of these semisynthetic opioids (mitragynine pseudoindoxyl, MGM-15) as “precision-formulated products,” “botanical extracts,” or as “mood boosters” for the treatment of health conditions is deeply concerning. The branding creates a false sense of safety for unknowing consumers who may equate the term “botanical” with lower risk. Furthermore, there is paucity of data on quality control or standardized dosage available for these products, making their use especially dangerous.

Mitragynine pseudoindoxyl, MGM-15, and MGM-16 are potent opioids that share a similar pharmacological profile with 7-hydroxymitragynine and morphine. Available pharmacology data demonstrate that mitragynine pseudoindoxyl, MGM-15, and MGM-16 exhibit strong affinity for the mu-opioid receptor (MOR) and function as MOR agonists. 15 16 Data from preclinical studies show that these substances produce analgesic effects that is more potent than morphine. 17 Because mitragynine pseudoindoxyl, MGM-15, and MGM-16 are potent MOR agonists, they pose similar health risks as other mu-opioid agonists ( i.e., morphine and fentanyl), including physical and psychological dependence, and respiratory depression.

A scan of retail data on the internet shows that vendors explicitly market mitragynine pseudoindoxyl and MGM-15 for their “clean and powerful” opioid-receptor activation, utilizing deceptive terminology to target individuals seeking alternatives to pharmaceutical opioids. These combinations and marketing strategies pose significant safety risks to unsuspecting consumers who use these products by exposing them to high doses of opioids. Recently, reports have confirmed the positive identification of mitragynine pseudoindoxyl and MGM-15 in toxicology cases in the United States, and evidence demonstrates that these substances are being misused. The lack of clinical data regarding their safety and efficacy, coupled with the risk of life-threatening respiratory depression and addiction, underscores the danger of marketing these unapproved, highly potent opioids under the guise of therapeutic or wellness products.

While no evidence supports the presence of MGM-16 on the Mitragyna speciosa consumer market, its profile as a highly potent opioid that is structurally related to 7-hydroxymitragynine lends itself as an attractive substitute that could emerge on the illicit drug market. MGM-16 is synthetically manufactured for research purposes and is not approved for any clinical indication in the United States. DEA's investigation of publicly available information, including popular online platforms, revealed that at least some individuals intend to abuse MGM-16. Recent online surveillance of a vendor site  18 listed MGM-16 for upcoming sale. The sale of products containing mitragynine pseudoindoxyl and MGM-15, and the potential sale of MGM-16, poses an imminent hazard to public safety.

Available data and information for mitragynine pseudoindoxyl, MGM-15, and MGM-16, summarized below, indicate that these substances have a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. DEA's three-factor analysis is available in its entirety under “Supporting and Related Material” of the public docket for this action at www.regulations.gov under Docket Number DEA-1644.

Mitragynine pseudoindoxyl, MGM-15, and MGM-16 are synthetic derivatives of the indole alkaloids, mitragynine or 7-hydroxymitragynine, of the Mitragyna speciosa plant. Unlike the indole alkaloids mitragynine and 7-hydroxymitragynine, which are naturally occurring in the plant, mitragynine pseudoindoxyl, MGM-15, and MGM-16 are produced through synthetic modifications of purified mitragynine isolates or 7-hydroxymitragynine. 19 The chemical scaffolds of mitragynine or 7-hydroxymitragynine were used in scientific research to develop novel mitragynine pseudoindoxyl, MGM-15, and MGM-16. The first mention of mitragynine pseudoindoxyl in scientific literature dates to 1974 when mitragynine pseudoindoxyl was isolated as a metabolite from bio-transformed mitragynine. In 2014, as part of a drug discovery research, MGM-15 and MGM-16 were developed as potent opioid agonists, with potential therapeutic utility for pain. 20

The first confirmed appearance of mitragynine pseudoindoxyl in consumer products was reported in 2024. 21 The emergence of MGM-15 in commercially available products was in September 2025. 22 The introduction of these substances into the Mitragyna speciosa consumer market follows a classic pattern of new designer drugs, where packaging appears like those of designer novel psychoactive substances and are often advertised as “sold strictly for laboratory, botanical, and research purposes only” and “not intended for human consumption.”  23 A study on products sold online containing mitragynine pseudoindoxyl showed that of the 51 total products sold online, 35 had an appealing flavor ( e.g., various berry, mint, watermelon, pink lemonade, candy apple, grape, citrus, mango, pistachio, and vanilla bean), and 32 of the products had packaging that was formulated using bright colors. Seventy-six percent (39 of 51) of these products were chewable tablets, 18 percent were liquids (9 of 51), and the remaining three were either dried ice cream cones with ice cream (two products) or a chocolate bar (one product). 24 Many of the products typically feature serving sizes that require consumers to split tablets or doses.

Users seek mitragynine pseudoindoxyl and MGM-15 products for their psychoactive effects and products are often advertised as mood enhancers or alternative to prescription opioid analgesics ( see Factor 5). These products are commonly sold in different product forms, such as powders, tablets, or liquid shots, which is a sharp contrast from the traditional mode of administration of Mitragyna speciosa, which was confined to either water decoctions or brewed into tea or chewing of fresh leaves. A review of vendor websites  25 show that these products are explicitly marketed as “potent” and “fast-acting” substances and sold at low prices. For example, mitragynine pseudoindoxyl and MGM-15 tablets are sold in varying fruit flavors and in bright colors, and prices vary from about $2-4 per tablet or $34.99 per pack (single pack and 10-pack bulk). Of great concern to DEA is that the price of these products may facilitate high-frequency and rapid escalation of use. Further, open-source signal detection demonstrates that users are seeking MGM-16 with the intent to abuse. 26

The shift from natural leaf decoctions of Mitragyna speciosa to flavored, standardized, and high-potency semi-synthetic substances suggests an intentional market strategy to maximize consumer appeal and sale of products with rapid onset of effects. The use of “research chemical” labeling, a common tactic to bypass regulatory oversight, for flavored chewable products further demonstrates a pattern to reach a broader consumer demographics.

The abuse of mitragynine pseudoindoxyl and MGM-15 is concerning due to their high opioid potency and commercial availability. Mitragynine pseudoindoxyl and MGM-15 products are sold in formulations that facilitate ease of use, bypass the traditional, lower-alkaloid preparation (chewing leaves or drinking tea), and provide a highly potent effect that mimics classical opioids such as morphine.

Analysis of marketed mitragynine pseudoindoxyl products revealed misleading marketing strategies with claims that the products are “kratom.” Available information on vendor website indicates that the concentrated alkaloid products often contain more than one alkaloid with opioid activity ( e.g., mitragynine and MGM-15 or 7-hydroxymitragynine and mitragynine pseudoindoxyl). These substance combinations and marketing practices pose significant safety risk to unsuspecting consumers by exposing them to high doses of opioids, and repeated use of opioids can lead to psychological and physical dependence. In fact, data show that chronic use of 7-hydroxymitragynine has sent users to opioid detox clinics and the need for opioid use disorder medication. 27 Furthermore, these products are labeled for “strong mood enhancement” and “analgesic properties.” Finally, the presence of these products containing mitragynine pseudoindoxyl and MGM-15 is deeply concerning because the identity, purity, and quality of these products' formulations are uncertain, thus presenting additional safety concerns for unsuspecting users. The potential presence of MGM-16 in designer products would have similar concerns.

A study of products sold as mitragynine pseudoindoxyl over the internet found that the 51 unique products sold online as mitragynine pseudoindoxyl were marketed in child-appealing forms and contained other opioid alkaloids, with limited consumer safety information. The serving size varied and alkaloid concentrations for these marketed products were often higher than those in naturally occurring Mitragyna speciosa leaves. The analysis revealed that among the products sampled, 71 percent featured a combination of mitragynine pseudoindoxyl and 7-hydroxymitragynine, while 24 percent contained mitragynine pseudoindoxyl only. The remaining 6 percent contained a combination of mitragynine pseudoindoxyl and other hydroxymitragynine forms (8-hydroxymitragynine or 11-hydroxymitragynine). 28

Data from online sources show that the availability of mitragynine pseudoindoxyl and MGM-15 are not isolated to a single region but have rapidly spread across the United States. Products containing mitragynine pseudoindoxyl and MGM-15 are sold on the internet and are delivered to most states where there are currently no kratom use restrictions, suggesting a national distribution network facilitated by online sales and mass-market retail channels. The significance of the abuse of mitragynine pseudoindoxyl and MGM-15 is underscored by the potent opioid pharmacological profile of these substances and the specific health warnings acknowledged even by those who are marketing the substances. Vendor descriptions listed below provide insight into the duration and pattern of use that characterizes the abuse of these compounds:

Sustained Effect: The duration of effects is reported to last “several hours.”  29 This prolonged duration increases the likelihood of cumulative effects and potential for toxicity if doses are repeated.

Deceptive Marketing for Medical Conditions: Despite having no FDA-approved medical use, these products are explicitly marketed for “easing stress and tension,” “internal calm and reduced restlessness,” and providing “mental clarity.”  30 This marketing encourages individuals with legitimate medical needs to utilize potent, unlawful opioids as self-treatment.

Deceptive “Natural” Branding: Vendors frequently frame these substances as “clean and powerful” alternatives to traditional kratom. This branding is used to minimize the perceived risk of what are highly potent semi-synthetic opioid agonists.

Deceptive Safety Profiles: While products are marketed as a “midday stress relief” or “mental reset,” the inclusion of warnings for lethal respiratory depression on retail sites confirms that the products possess a toxicity profile identical to scheduled opioids.

Low Barrier to Entry: The use of “fruity” flavors and “chewable” formats ( e.g., Fruity Perks) suggests an effort to appeal to a broader, potentially younger demographic, significantly increasing the scope of potential abuse.

According to the National Forensic Laboratory Information System (NFLIS)  31 database, which collects drug identification results from drug cases submitted to and analyzed by Federal State and local forensic laboratories, there have been 19 reports of mitragynine pseudoindoxyl in Arkansas (n = 15), New York (n = 1), Ohio (n = 1), and Wyoming (n = 2) (queried June 23, 2026). Monographs  32 by the Center for Forensic Science Research and Education (CFSRE) report that mitragynine pseudoindoxyl (n > 10) and MGM-15 (n = 2) were detected in at least 12 drug materials. MGM-15 was detected as a tan solid drug that originated from New England, and those involving mitragynine pseudoindoxyl (pills and tablets) initially originated from Pennsylvania and Illinois. Furthermore, a CFSRE  33 trend report identified mitragynine pseudoindoxyl in 103 toxicology specimens and 12 drug materials; similarly, MGM-15 appeared in 21 toxicology specimens and 3 drug materials. This surge in prevalence is underscored by law enforcement action, including a federal and local authorities raid on a Florida-based business distributing 7-hydroxymitragynine and MGM-15 products.

The paucity or lack of seizure data for some of these 7-hydroxymitragynine-related substances as reported in forensic laboratories casework may be due to lack of readily available analytical reference standards and other analytic challenges. Because these are new substances, it often takes time for forensic laboratories to develop and validate the necessary testing methods required for substance identification. Specifically, mitragynine pseudoindoxyl is an oxidative metabolite of 7-hydroxymitragynine, and such closely related compounds require specific method and instrumentation for accurate identification. Also, as these 7-hydroxymitragynine-related substances are not federally controlled under the CSA, some forensic laboratories may not analyze and track encounters of non-controlled substances, and thus reporting could be limited.

The population likely to abuse mitragynine pseudoindoxyl, MGM-15, and MGM-16 appear to be the same as those abusing Mitragyna speciosa and prescription opioid analgesics. According to data from the National Survey on Drug Use and Health (NSDUH), 34 as of 2021, an estimated 1.7 million people aged 12 years or older used kratom in the past year. The highest users were among adults aged 26 or older (1.4 million people). The analysis of 2019 NSDUH survey data showed that kratom users are predominately non-Hispanic White and male. The survey finding also revealed a link between kratom use and substance use disorder, particularly nonmedical prescription opioid use disorder, indicative of a strong trend of use for self-managing opioid dependence. 35 By 2022, the prevalence of people who reported past year kratom use had increased to 1.9 million. 36

Mitragynine pseudoindoxyl, MGM-15, and MGM-16 function as potent MOR agonists. This mechanism of action is inherently associated with high potential of abuse, physical dependence, and psychological dependence, consistent with the effects of controlled schedule I and II opioid substances. As of early 2026, mitragynine pseudoindoxyl and MGM-15 products are sold in smoke shops, gas stations, and through numerous online marketplaces, often positioned alongside dietary supplements, which mask their potent opioid nature. Data from preclinical studies demonstrate that mitragynine pseudoindoxyl is about 100 times more potent than mitragynine at the MOR, and MGM-15 and MGM-16 are about 50 and 240 times more potent than morphine in animal models, respectively. 37 Because of the potency of these compounds, they can be abused in smaller, concentrated doses. It has been demonstrated that mitragynine pseudoindoxyl may cause development of signs of opioid physical dependence after chronic use in rodents. Pre-clinical studies demonstrated that chronic twice-daily administration of mitragynine pseudoindoxyl in rodents induces signs of opioid physical dependence and withdrawal symptoms in morphine addiction rodent models as evidenced by increased diarrhea, jumping, and rearing frequency occurring when naloxone was administered or when treatment with this alkaloid was tapered. 38

These products are easily accessible in retail environments often with no age restrictions, amplifying public health concerns, particularly to vulnerable populations. Vendor descriptions provide insight into the public health threat posed by the abuse of these compounds:

Rapid Onset: Marketing materials for mitragynine pseudoindoxyl products emphasize a “quick onset,” typically occurring within 10 to 60 minutes, often described as a “wave of calm clarity,” “dual-action formula featuring 100mg per piece for maximum potency and a fast-acting hit.”  39

Sustained Effect: The duration of effects is reported to last “several hours.”  40 This prolonged duration increases the likelihood of cumulative effects and potential for toxicity if doses are repeated.

Potency Information: Marketing information of an MGM-15 product indicates the products contain a very large amount of MGM-15 “105 mg total per bottle,”  41 which, given its extreme opioid potency, presents a significant threat to public health.

Opioid Receptor Activation: Marketing materials explicitly state that these compounds directly activate opioid receptors and are “full agonist at mu receptors,” providing effects that mirror analgesic and stimulant effects (pain relief and mood enhancement). 42

Acknowledgment of Severe Risks: Notably, vendors acknowledge significant public health risks, advising users to monitor for “habit-forming behavior,” “high euphoria,” “dependence,” “overdose,” and “death.”  43 The mention of overdose and death is a significant indicator of the hazard these substances pose.

As with any MOR agonist, the potential health and safety risks for users of 7-hydroxymitragynine-related substances are high. Mitragynine pseudoindoxyl, MGM-15, and MGM-16 abuse carry a high risk of cardiotoxicity, hepatic and renal toxicity, respiratory depression, neurological effects, and physical dependence and withdrawal. According to data from poison control centers, from January to July 2025, there have been 1,690 exposure calls involving kratom, a significant increase from 2024 exposure calls. A recent CDC morbidity and mortality weekly report (MMWR) notes the marked surge in calls related to kratom exposure to poison centers by over 1,200% between 2015 (n = 258) and 2025 (n = 3,434). The MMWR notes that United States poison centers received a total of 14,449 kratom exposure reports during the past 11 years. 44

According to data from DEA Toxicology Testing Program (DEA TOX), 45 between February 2025-May 2026, mitragynine pseudoindoxyl has been identified in at least 56 overdose cases, of which 48 were fatal events. From February through April 2026, DEA TOX detected MGM-15 in 17 overdose cases, 16 resulting from a fatal event.

A recent clinical case report  46 highlights the severe acute risks associated with mitragynine pseudoindoxyl consumption. A 34-year-old male escalated from powdered kratom use to 7-hydroxymitragynine tablets and then to mitragynine pseudoindoxyl tablets, eventually consuming nine 20 mg doses daily (including one to two nocturnal doses). The individual attempted to reduce dose and frequency of use but was unsuccessful due to withdrawal characterized as “crawling out of skin symptom.”  47 The patient presented with a clinical opiate withdrawal scale score of 31 (categorized as severe), alongside autonomic instability, including hypertension, tachycardia, and physical symptoms (such as severe body aches, tremors, diaphoresis, gastrointestinal distress and chills). The patient required supportive management (clonidine, hydroxyzine, gabapentin, loperamide, and antiemetics) over a 72-96-hour period. In addition, on days 5 and 6, the patient was administered naltrexone depot (Vivitrol) injection.

The sale of products with a combination of high-potency opioids, explicit marketing for medical ailments, and the acknowledged potential for life-threatening respiratory depression and addiction highlights the danger posed by mitragynine pseudoindoxyl and MGM-15. While mitragynine pseudoindoxyl and MGM-15 have already been identified in fatal toxicological screening, the pharmacological profile of MGM-16 presents a significant health risk. As previously mentioned, MGM-16 is an opioid agonist with approximately 240-times the antinociceptive potency of morphine in animal studies. Recent online surveillance of a vendor site  48 lists MGM-16 for upcoming sale. This transition from a research grade chemical to an accessible consumer product, combined with its opioid mechanism of action, underscores its potential as a highly attractive but lethal substitute. Thus, to schedule MGM-15 without MGM-16 would create a regulatory loophole that manufacturers are already poised to exploit. Its inclusion is necessary to prevent a market shift toward an even more potent derivative that poses a significant risk of respiratory depression.

In accordance with 21 U.S.C. 811(h)(3), based on the available data and information summarized above, the uncontrolled manufacture, distribution, reverse distribution, importation, exportation, conduct of research and chemical analysis, possession, and abuse of mitragynine pseudoindoxyl, MGM-15, and MGM-16 pose an imminent hazard to public safety. DEA is not aware of any currently accepted medical uses for mitragynine pseudoindoxyl, MGM-15, and MGM-16 in the United States. A substance meeting the statutory requirements for temporary scheduling, found in 21 U.S.C. 811(h)(1), may only be placed in schedule I. Substances in schedule I are those that have a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. Available data and information for mitragynine pseudoindoxyl, MGM-15, and MGM-16 indicate that these substances have a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision.

As required by 21 U.S.C. 811(h)(4), the Administrator notified the Assistant Secretary, via letter dated December 15, 2025, of DEA's intention to temporarily place mitragynine pseudoindoxyl, MGM-15, and MGM-16 in schedule I. In a letter dated January 20, 2026, the Assistant Secretary for Health stated that HHS had no objection to the temporary placement of these substances in schedule I. DEA subsequently published this NOI in the Federal Register on July 6, 2026. 49

In accordance with 21 U.S.C. 811(h)(1) and (3), the Administrator considered available data and information, herein set forth the grounds for his determination that it is necessary to temporarily schedule mitragynine pseudoindoxyl, MGM-15, and MGM-16 in schedule I of the CSA, and finds that placement of these substances in schedule I of the CSA is necessary in order to avoid an imminent hazard to the public's safety.

The temporary placement of mitragynine pseudoindoxyl, MGM-15, and MGM-16 in schedule I of the CSA will take effect on the date the order is published in the Federal Register and will remain in effect for two years, with a possible extension of one year, pending completion of the regular (permanent) scheduling process. 50

The CSA sets forth specific criteria for scheduling drugs or other substances. Permanent scheduling actions in accordance with 21 U.S.C. 811(a) are subject to formal rulemaking procedures “on the record after opportunity for a hearing” conducted pursuant to the provisions of 5 U.S.C. 556 and 557. 51 The permanent scheduling process of formal rulemaking affords interested parties appropriate process and the government any additional relevant information needed to make a determination. Final decisions that conclude the permanent scheduling process of formal rulemaking are subject to judicial review. 52 Temporary scheduling orders are not subject to judicial review. 53

Upon the effective date of this temporary order, mitragynine pseudoindoxyl, MGM-15, and MGM-16 will be subject to the regulatory controls and administrative, civil, and criminal sanctions applicable to the manufacture, distribution, reverse distribution, importation, exportation, possession of, and engagement in research and conduct of instructional activities or chemical analysis with, schedule I controlled substances, including but not limited to the following:

1. Registration. Any person who handles (possesses, manufactures, distributes, reverse distributes, imports, exports, engages in research, or conducts instructional activities or chemical analysis with) or desires to handle, mitragynine pseudoindoxyl, MGM-15, and MGM-16 must be registered with DEA to conduct such activities, pursuant to 21 U.S.C. 822, 823, 957, and 958, and in accordance with 21 CFR parts 1301 and 1312, as of August 26, 2026. Any person who currently handles mitragynine pseudoindoxyl, MGM-15, and MGM-16 and is not registered with DEA to conduct research with a schedule I controlled substance must submit an application for registration and may not continue to handle mitragynine pseudoindoxyl, MGM-15, and MGM-16 as of August 26, 2026, unless DEA has approved that application for registration pursuant to 21 U.S.C. 822, 823, 957, and 958, and in accordance with 21 CFR parts 1301 and 1312.

Notwithstanding the foregoing, pursuant to 21 U.S.C. 822(h), if, on August 26, 2026, a person is conducting research on mitragynine pseudoindoxyl, MGM-15, and MGM-16 and is already registered to conduct research with another controlled substance in schedule I, the person may continue to conduct research on mitragynine pseudoindoxyl, MGM-15, and MGM-16 if they submit a completed application for registration or modification of existing registration, as applicable, to conduct research with mitragynine pseudoindoxyl, MGM-15, and MGM-16 not later than 90 calendar days after August 26, 2026. The person may continue to conduct such research until the person withdraws the application or the Administrator serves on the person an order to show cause proposing denial of the application pursuant to 21 U.S.C. 824(c) and in accordance with 21 CFR 1301.37. If the Administrator serves an order to show cause proposing denial of the application or modification, the person may not continue to conduct research with mitragynine pseudoindoxyl, MGM-15, and MGM-16 and may not receive or otherwise obtain additional mitragynine pseudoindoxyl, MGM-15, and MGM-16. If an order to show cause is served and the person requests a hearing in accordance with 21 CFR 1301.37(d), the hearing shall be held in accordance with 21 CFR 1301.41-1301.46 on an expedited basis and not later than 45 calendar days after the request is made, except that the hearing may be held at a later time if so requested by the person. If the person sends a copy of the application to a manufacturer or distributor of mitragynine pseudoindoxyl, MGM-15, and MGM-16, receipt of the copy by the manufacturer or distributor constitutes sufficient evidence that the person is authorized to receive mitragynine pseudoindoxyl, MGM-15, or MGM-16 pursuant to 21 U.S.C. 822(h)(4). Continuation of research under 21 U.S.C. 822(h) does not authorize any other handling ( e.g., distribution) of mitragynine pseudoindoxyl, MGM-15, or MGM-16.

Retail sales of schedule I controlled substances to the general public are not allowed under the CSA. Possession of any quantity of mitragynine pseudoindoxyl, MGM-15, or MGM-16 in a manner not authorized by the CSA on or after August 26, 2026 is unlawful, and those in possession of any quantity of mitragynine pseudoindoxyl, MGM-15, and MGM-16 may be subject to prosecution pursuant to the CSA.

2. Disposal of stocks. Any person who does not desire or is unable to obtain a schedule I registration to handle mitragynine pseudoindoxyl, MGM-15, or MGM-16 must surrender all currently held quantities of this substance.

3. Security. Mitragynine pseudoindoxyl, MGM-15, or MGM-16 is subject to schedule I security requirements and must be handled in accordance with 21 CFR 1301.71-1301.93, as of August 26, 2026.

4. Labeling and Packaging. All labels, labeling, and packaging for commercial containers of mitragynine pseudoindoxyl, MGM-15, or MGM-16 must comply with 21 U.S.C. 825 and 958(e) and 21 CFR part 1302. Current DEA registrants will have 30 calendar days from August 26, 2026, to comply with all labeling and packaging requirements.

5. Inventory. Every DEA registrant who possesses any quantity of mitragynine pseudoindoxyl, MGM-15, or MGM-16 on the effective date of this order must take an inventory of all stocks of this substance on hand pursuant to 21 U.S.C. 827 and 958, and in accordance with 21 CFR 1304.03, 1304.04, and 1304.11. Current DEA registrants will have 30 calendar days from the effective date of this order to comply with all inventory requirements. After the initial inventory, every DEA registrant must take an inventory of all controlled substances (including mitragynine pseudoindoxyl, MGM-15, and MGM-16) on hand on a biennial basis pursuant to 21 U.S.C. 827 and 958 and in accordance with 21 CFR 1304.03, 1304.04, and 1304.11.

6. Records. All DEA registrants must maintain records with respect to mitragynine pseudoindoxyl, MGM-15, and MGM-16 pursuant to 21 U.S.C. 827 and 958(e) and in accordance with 21 CFR parts 1304, 1312, and 1317, and section 1307.11. Current DEA registrants authorized to handle mitragynine pseudoindoxyl, MGM-15, or MGM-16 shall have 30 calendar days from the effective date of this order to comply with all recordkeeping requirements.

7. Reports. All DEA registrants must submit reports with respect to mitragynine pseudoindoxyl, MGM-15, and MGM-16 pursuant to 21 U.S.C. 827 and in accordance with 21 CFR parts 1304, 1312, and 1317, and sections 1301.74(c) and 1301.76(b), as of August 26, 2026. Manufacturers and distributors must also submit reports regarding mitragynine pseudoindoxyl, MGM-15, and MGM-16 to the Automation of Reports and Consolidated Order System pursuant to 21 U.S.C. 827 and in accordance with 21 CFR parts 1304 and 1312.

8. Order Forms. All DEA registrants who distribute mitragynine pseudoindoxyl, MGM-15, and MGM-16 must comply with order form requirements pursuant to 21 U.S.C. 828 and in accordance with 21 CFR part 1305 as of August 26, 2026.

9. Importation and Exportation. All importation and exportation of mitragynine pseudoindoxyl, MGM-15, and MGM-16 must be in compliance with 21 U.S.C. 952, 953, 957, and 958, and in accordance with 21 CFR part 1312 as of August 26, 2026.

10. Quota. Only DEA-registered manufacturers may manufacture mitragynine pseudoindoxyl, MGM-15, and MGM-16 in accordance with a quota assigned pursuant to 21 U.S.C. 826 and in accordance with 21 CFR part 1303, as of August 26, 2026.

11. Liability. Any activity involving mitragynine pseudoindoxyl, MGM-15, and MGM-16 not authorized by or in violation of the CSA, occurring as of August 26, 2026, is unlawful, and may subject the person to administrative, civil, and/or criminal sanctions.

The CSA provides for expedited temporary scheduling actions where necessary to avoid an imminent hazard to public safety. Under 21 U.S.C. 811(h)(1), the Administrator, as delegated by the Attorney General, may, by order, temporarily schedule substances in schedule I. Such orders may not be issued before the expiration of 30 days from: (1) the publication of a notice in the Federal Register of the intent to issue such order and the grounds upon which such order is to be issued, and (2) the date that notice of the proposed temporary scheduling order is transmitted to the Assistant Secretary of HHS, as delegated by the Secretary of HHS. 54

Inasmuch as section 811(h) directs that temporary scheduling actions be issued by order (as distinct from a rule) and sets forth the procedures by which such orders are to be issued, DEA believes the notice-and-comment requirements of the Administrative Procedure Act (APA) at 5 U.S.C. 553, which are applicable to rulemaking, do not apply to this temporary scheduling order. The APA expressly differentiates between an order and a rule, as it defines an “order” to mean a “final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making.”   55 This contrasts with permanent scheduling actions, which are subject to formal rulemaking procedures done “on the record after opportunity for a hearing,” and final decisions that conclude the scheduling process and are subject to judicial review. 56 The specific language chosen by Congress indicates its intent that DEA issue orders instead of proceeding by rulemaking when temporarily scheduling substances. Given that Congress specifically requires the Administrator (as delegated by the Attorney General) to follow rulemaking procedures for other kinds of scheduling actions, 57 it is noteworthy that, in section 811(h)(1), Congress authorized the issuance of temporary scheduling actions by order rather than by rule.

Even assuming that this action is subject to the notice-and-comment requirements of the APA, the Administrator finds that there is good cause to forgo these requirements pursuant to 5 U.S.C. 553(b)(B), as any further delays in the process for issuing temporary scheduling orders would be impracticable and contrary to the public interest given the manifest urgency to avoid an imminent hazard to public safety.

Although DEA believes this temporary scheduling order is not subject to the notice-and-comment requirements of the APA, DEA notes that in accordance with 21 U.S.C. 811(h)(4), the Administrator took into consideration comments submitted by the Assistant Secretary in response to the notice that DEA transmitted to the Assistant Secretary pursuant to such subsection.

Further, DEA believes that this temporary scheduling action is not a “rule” as defined by 5 U.S.C. 601(2), and, accordingly, is not subject to the requirements of the Regulatory Flexibility Act (RFA). The requirements for the preparation of an initial regulatory flexibility analysis in 5 U.S.C. 603(a) are not applicable where, as here, DEA is not required by the APA or any other law to publish a general notice of proposed rulemaking. Therefore, in this instance, since DEA believes this temporary scheduling action is not a “rule,” it is not subject to the requirements of the RFA when issuing this temporary action.

In accordance with the principles of Executive Orders (E.O.) 12866 and 13563, this action is not a significant regulatory action. E.O. 12866 directs 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). E.O. 13563 is supplemental to and reaffirms the principles, structures, and definitions governing regulatory review as established in E.O. 12866. Section 3(f) of E.O. 12866 provides the definition of a “significant regulatory action,” requiring review by the Office of Management and Budget. Because this is not a rulemaking action, this is not a significant regulatory action as defined in Section 3(f) of E.O. 12866. In addition, DEA scheduling actions are not subject to either E.O. 14192, Unleashing Prosperity Through Deregulation, or E.O. 14294, Fighting Overcriminalization in Federal Regulations.

This action will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with E.O. 13132, it is determined that this action does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

For the reasons set out above, DEA amends 21 CFR part 1308 as follows:

This document of the Drug Enforcement Administration was signed on August 24, 2026, by DEA Administrator Terrance C. Cole. That document with the original signature and date is maintained by DEA. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DEA Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of DEA. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

This document and additional information concerning OFAC are available on OFAC's website: https://ofac.treasury.gov.

On October 22, 2012, OFAC issued a final rule that amended the former Iranian Transactions Regulations, 31 CFR part 560 (ITR), and reissued them in their entirety as the Iranian Transactions and Sanctions Regulations (ITSR or “the Regulations”) (77 FR 64664, October 22, 2012). Since then, OFAC has amended the Regulations on several occasions.

On February 27, 2014, OFAC published in the Federal Register General License F, which was issued pursuant to the Regulations on September 10, 2013 (79 FR 11180, February 27, 2014). On August 19, 2014, OFAC published in the Federal Register General License G, which was issued pursuant to the Regulations on March 19, 2014 (79 FR 49157, August 19, 2014). These general licenses were issued pursuant to the Regulations and are available on OFAC's website ( www.treasury.gov/ofac ).

In response to Iran's continued disruptions to global energy markets, attacks on partners and allies in the Middle East, reconstitution of its conventional and nuclear weapons programs, efforts to monetize the Strait of Hormuz, and continued support to terrorist proxies, OFAC is indefinitely suspending the general licenses contained at 31 CFR 560.544, 560.550, and 560.554. These general licenses authorize, respectively, certain educational activities by U.S. persons in third countries; certain noncommercial, personal remittances to or from Iran; and the importation and exportation of services related to conferences in the United States or third countries. As a result of this suspension, any such transactions are no longer authorized by OFAC as of August 24, 2026.

In addition, OFAC is suspending indefinitely Iran General License F, published at 79 FR 11180, and Iran General License G, published at 79 FR 49157. These general licenses authorize, respectively, certain services in support of professional and amateur sports activities and exchanges involving the United and Iran, and certain academic exchanges and the exportation or importation of certain educational services. As a result of this suspension, any such transactions are no longer authorized by OFAC as of August 24, 2026.

Because the Regulations involve a foreign affairs function, the provisions of E.O. 12866 of September 30, 1993, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), as amended, and the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, opportunity for public participation, and delay in effective date, as well as the provisions of E.O. 14192 of January 31, 2025, “Unleashing Prosperity Through Deregulation” (90 FR 9065, February 6, 2025) and E.O. 14219 of February 19, 2025, “Ensuring Lawful Governance and Implementing the President's `Department of Government Efficiency' Deregulatory Initiative” (90 FR 10583, February 25, 2025) are inapplicable. Because no notice of proposed rulemaking is required for this rule, the Regulatory Flexibility Act (5 U.S.C. 601-612) does not apply.

Section 5 of E.O. 14294 of May 9, 2025, “Fighting Overcriminalization in Federal Regulations” (90 FR 20367, May 14, 2025) directs that all future notices of proposed rulemaking (NPRMs) and final rules published in the Federal Register , the violation of which may constitute criminal regulatory offenses, should include a statement identifying that the rule or proposed rule is a criminal regulatory offense and the authorizing statute. E.O. 14294 directs agencies to draft this statement in consultation with the Department of Justice.

E.O. 14294 further directs that the regulatory text of all NPRMs and final rules with criminal consequences published in the Federal Register after May 9, 2025 should explicitly state a mens rea requirement for each element of a criminal regulatory offense, accompanied by citations to the relevant provisions of the authorizing statute.

Willful violations of the regulations set forth in this final rule may be subject to criminal penalties pursuant to 50 U.S.C. 1705 and regulations promulgated thereunder. The statutory authority for criminal liability requires a mens rea of willfulness as an element pursuant to 50 U.S.C. 1705(c). In drafting this statement, OFAC has consulted with the Department of Justice.

The Paperwork Reduction Act does not apply because this rule does not impose information collection requirements that would require the approval of the Office of Management and Budget under 44 U.S.C. 3501 et seq.

For the reasons set forth in the preamble, OFAC amends 31 CFR part 560 as follows:

On February 25, 2026, an organization notified the Coast Guard that they will be sponsoring a sailing race on Lake Erie near Kelleys Island, OH on August 29, 2026. The event will be held from 8:30 a.m. to 5 p.m. on August 29, 2026. The race will include approximately 50 participants and 3 spectator craft. On June 25, 2026, the Coast Guard published a notice of proposed rulemaking (NPRM) titled Special Local Regulation; Lake Erie, Kelleys Island, OH (91 FR 38351). In that NPRM, we stated why we issued the NPRM and invited comments on our proposed regulatory action related to this sailing race.

Under the authority in 46 U.S.C. 70041, the COTP has determined that this rule is necessary to protect personnel, vessels, and the marine environment from potential hazards associated with the sailing race. No vessel or person will be permitted to enter the regulated area without obtaining permission from the COTP or their designated representative.

Because of the hazards associated with this event, the Coast Guard finds that under 5 U.S.C. 553(d)(3), good cause exists for making this rule effective less than 30 days after publication in the Federal Register because it is impracticable. We must establish this regulated area by August 29, 2026, to protect personnel, vessels, and the marine environment.

During the comment period that ended on July 27, 2026, we received two duplicate comments from the same individual.

The commenter expressed several concerns with the SLR, largely centered on the structure of the SLR and its potential impact on the local business community. Specifically, the commenter was concerned with the potential difficulty of enforcing a moving SLR, suggesting boaters may not know when they are within the exclusionary zone; the duration of the SLR; potential safety risks posed by requiring non-participant vessels to detour around the route; and the potential impact of the restrictions on the local business community on a peak summer tourism Saturday. The commenter questioned whether the Coast Guard could have used less restrictive alternatives, such as patrol boat escorts, broadcast notice to mariners, designated spectator zones, and small buffers. Finally, the commenter felt that the Coast Guard did not provide adequate notice to the public of the proposed SLR, and that the NPRM should have contained more specific information, including the sponsoring organization's name. The commenter also believed that the NPRM was missing certain information, such as the number of participants and the racecourse coordinates.

The Coast Guard has complied with all applicable laws in establishing this SLR to protect vessels and property during a marine event. With respect to the structure of the SLR, a moving exclusion zone is common practice with sailing races. The public is on notice that this event is on August 29, 2026, and thus, should be mindful of where the participants and the exclusionary zone are located as they are transiting in the vicinity of the courses. The duration of the event is not set by the Coast Guard. It was provided by the sponsoring organization, and the time has been confirmed. The rule lasts only as long as the event.

Further, consistent with the “Impact on Small Entities” analysis in the NPRM, we expect limited economic impact on the Kelleys Island region. Although the course encompasses Kelleys Island, recreational vessels will be able to go around the event safely and easily as the regulated area is 100 yards around participants, not the entire course. The Coast Guard intends to have a patrol around the vessels. As noted in the NPRM, the Coast Guard will issue a Broadcast Notice to Mariners via VHF FM marine channel 16, which will allow small entities to adjust their transit plans, and the rule allows vessels to request permission to enter the regulated area from the COTP or the COTP's designated representative. The COTP determined a designated spectator zone is not necessary as the only spectators for the event are the designated safety boats provided by the event sponsor. The Coast Guard has utilized the least restrictive mechanism to protect personnel, vessels, and the marine environment from potential hazards created by a sailing race. This appropriately balances the interests of all entities while providing necessary protection for personnel, vessels, and the marine environment from the potential hazards of a sailing race.

The Coast Guard disagrees with the commenter's assertion that the public was not provided adequate notice of the rule. The Coast Guard provided notice of the event on June 25, 2026, and provided a reasonable period of time for public comment. The Coast Guard received only one comment, which was comprehensive in scope. The commenter does not indicate what additional comments he might have made if given a longer comment period. With respect to the commenter's concern that the NPRM did not contain the sponsoring organization's name, the name of the organization sponsor is not relevant to the rulemaking. Finally, the commenter is mistaken that the NPRM did not contain the number of participants or the racecourse coordinates. The NPRM explicitly lays out the number of participants and the text describing the regulated area sets forth the race course coordinates.

There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.

This rule establishes a special regulated area from 8:30 a.m. until 5 p.m. on August 29, 2026. The regulated area covers all navigable waters within 100 yards of the participants on the race course. No vessel or person will be permitted to enter the regulated area without obtaining permission from the COTP or their designated representative.

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

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the rulemaking is not expected to have a significant economic impact on a substantial number of small entities.

The Coast Guard certifies that, although some small entities may intend to transit the regulated area above, this rule will not have a significant economic impact on a substantial number of small entities. Vessel traffic will be able to safely transit around this regulated area. This regulated area will only impact a small, designated area for a few hours. In addition, the Coast Guard will issue a Broadcast Notice to Marines via VHF FM marine channel 16, which will allow small entities to adjust their transit plans, and the rule allows vessels to request permission to enter the zone from the COTP.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), if this rule will affect your small business, organization, or governmental jurisdiction and you have questions, contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards by calling 1-888-REG-FAIR (1-888-734-3247).

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

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

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

As required by The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), the Coast Guard certifies that this rule will not result in an annual expenditure of $100,000,000 or more (adjusted for inflation) by a State, local, or tribal government, in the aggregate, or by the private sector.

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment.

This proposed rule is a special regulated area. It is categorically excluded from further review under paragraph L61.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:

The Coast Guard received notification that an aerial drone show will be conducted above Spring Lake, in the vicinity of Fruitport, MI. The Captain of the Port Sector Lake Michigan has determined that potential hazards associated with aerial drone show are a safety concern for anyone underneath the show.

Therefore, the COTP is issuing this rule under the authority in 46 U.S.C. 70034, which is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone.

Because of these potential hazards, the Coast Guard is issuing this rule without prior notice and comment. As is authorized by 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. The Coast Guard was notified of this event on July 29, 2026, but we must establish this safety zone by August 27, 2026, to protect personnel, vessels, and the marine environment. Therefore, we do not have enough time to solicit and respond to comments.

For the same reason, the Coast Guard finds that under 5 U.S.C. 553(d)(3), good cause exists for making this rule effective less than 30 days after publication in the Federal Register .

This rule establishes a safety zone on August 27, 2026, from 8:30 p.m. until 10 p.m. The safety zone will cover all navigable waters of Spring Lake from surface to bottom, from shoreline to shoreline, east of a line drawn between the following points: originating on the shoreline in position, 43°07.403′ N, 086°09.496′ W, thence south to position, 43°07.279′ N, 086°09.490′ W. Vessels and persons will not be allowed to enter the zone during this time, unless authorized by the Captain of the Port, Sector Lake Michigan or a designated representative.

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

The regulatory flexibility analysis provisions of the Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, do not apply to rules that are not subject to notice and comment. Because the Coast Guard has, for good cause, waived the notice and comment requirement that would otherwise apply to this rulemaking, the Regulatory Flexibility Act's flexibility analysis provisions do not apply here.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), if this rule will affect your small business, organization, or governmental jurisdiction and you have questions, contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards by calling 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

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

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

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

As required by The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), the Coast Guard certifies that this rule will not result in an annual expenditure of $100,000,000 or more (adjusted for inflation) by a State, local, or tribal government, in the aggregate, or by the private sector.

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment.

This rule is a safety zone. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket.

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

The Coast Guard received notification that a fireworks display will be launched from the Brandenburg Township Park Pier and displayed over Lake St. Clair in New Baltimore, MI. The Captain of the Port Detroit (COTP) has determined that potential hazards associated with the fireworks display are a safety concern for anyone within a 420-foot radius of the launch point. Therefore, the Coast Guard is issuing this rule under the authority in 46 U.S.C. 70034, which is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone.

Because of these potential hazards, the Coast Guard is issuing this rule without prior notice and comment. As is authorized by 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. The Coast Guard was notified of this event on July 15, 2026, we must establish this safety zone by August 28, 2026, to protect personnel, vessels, and the marine environment. Therefore, we do not have enough time to solicit and respond to comments.

For the same reason, the Coast Guard finds that under 5 U.S.C. 553(d)(3), good cause exists for making this rule effective less than 30 days after publication in the Federal Register .

This rule is effective from 9:30 p.m. on August 28, 2026, until 10:30 p.m. on August 29, 2026. This rule will be enforced from 9:30 p.m. until 10:30 p.m. on August 28, 2026. In the event of inclement weather on August 28, 2026, this rule will be enforced from 9:30 p.m. until 10:30 p.m. on August 29, 2026. The safety zone will cover all navigable waters of Lake St. Clair within a 420-foot radius of the Anchor Bay Bass, Brew, BBQ fireworks site at Brandenburg Township Park Pier in Lake St. Clair, New Baltimore, MI. Vessels and persons will not be allowed to enter the zone during this time, unless authorized by the COTP or their designated representative.

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

The regulatory flexibility analysis provisions of the Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, do not apply to rules that are not subject to notice and comment. Because the Coast Guard has, for good cause, waived the notice and comment requirement that would otherwise apply to this rulemaking, the Regulatory Flexibility Act's flexibility analysis provisions do not apply here.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), if this rule will affect your small business, organization, or governmental jurisdiction and you have questions, contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards by calling 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

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

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

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

As required by The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), the Coast Guard certifies that this rule will not result in an annual expenditure of $100,000,000 or more (adjusted for inflation) by a State, local, or tribal government, in the aggregate, or by the private sector.

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment.

This rule is a safety zone. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket.

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

This final rule incorporates classification changes adopted by the Nice Agreement that will become effective on January 1, 2027. Specifically, this rule amends two class headings to more clearly define the types of goods appropriate to the class.

The USPTO is revising 37 CFR 6.1 to incorporate classification changes and modifications, as listed in the Nice Classification, published by WIPO, that will become effective on January 1, 2027. The Nice Agreement is a multilateral treaty, administered by WIPO, that establishes the international classification of goods and services for the purpose of registering trademarks and service marks. As of September 1, 1973, this international classification system is the controlling system used by the United States, and it applies, for all statutory purposes, to all applications filed on or after September 1, 1973, and their resulting registrations. 37 CFR 2.85(a). Every signatory to the Nice Agreement must use the international classification system. Nice Agreement art. 1, June 15, 1957, 550 U.N.T.S. 45 (amended on Sept. 28, 1979).

Each state party to the Nice Agreement is represented in the Committee of Experts of the Nice Union (Committee of Experts), which meets annually to vote on proposed changes to the Nice Classification. Any state that is a party to the Nice Agreement may submit proposals for consideration by the other members of the Committee of Experts, in accordance with agreed-upon rules of procedure. Proposals are currently submitted annually to an electronic forum on the WIPO website, where they are commented on, modified, and compiled for further discussion and voting at the annual Committee of Experts meeting.

In 2013, the Committee of Experts began annual revisions to the Nice Classification. The annual revisions, which are published electronically and enter into force on January 1 each year, are referred to as versions and identified by an edition number and the year of the effective date ( e.g., “Nice Classification, 10th ed., ver. 2013” or “NCL 10-2013”). Each annual version includes changes adopted by the Committee of Experts since the adoption of the previous version, consisting of: (1) the addition of new goods and services to, and the deletion of goods and services from, the Alphabetical List; and (2) any modifications to the wording in the Alphabetical List, the class headings, or the explanatory notes that do not involve the transfer of goods or services from one class to another.

As of January 1, 2023, new editions of the Nice Classification are published electronically every three years. They include all changes adopted since the previous annual version, as well as goods or services transferred from one class to another and new classes that have been created since the previous edition.

The 36th session of the Committee of Experts, comprised of member states and WIPO, took place from April 27-May 1, 2026, at WIPO headquarters in Geneva, Switzerland. The revisions contained in this final rule consist of modifications to class headings that were incorporated into the Nice Agreement through voting during the session.

Under the Nice Classification, there are 34 classes of goods and 11 classes of services, each with a class heading. Class headings generally indicate the fields to which goods and services belong. Based on the annual revisions to the Nice Classification, this rule amends descriptions of existing goods in two class headings to more clearly define the types of goods appropriate to the class. As a signatory to the Nice Agreement, the United States adopts these revisions pursuant to Article 1.

The USPTO amends § 6.1 to revise Class 6 to replace the comma following “alloys” with a semicolon.

The USPTO amends § 6.1 to revise Class 9 to replace “divers'” in “divers' masks” and “divers” in “ear plugs for divers, nose clips for divers” with “diving” and to replace “gloves for divers” with “diving gloves.”

A. Administrative Procedure Act: This final rule revises the regulations to reflect modifications to class headings, which indicate the classes to which goods and services belong, that were incorporated into the Nice Agreement. The changes in this final rule do not change the substantive criteria for the registration of a trademark. Therefore, the changes in this rulemaking involve rules of agency practice and procedure and/or interpretive rules and do not require notice-and-comment rulemaking pursuant to 5 U.S.C. 553(b)(B). See Perez v. Mortg. Bankers Ass'n, 575 U.S. 92, 97, 101 (2015) (explaining that interpretive rules “advise the public of the agency's construction of the statutes and rules which it administers” and do not require notice-and-comment when issued or amended); Cooper Techs. Co. v. Dudas, 536 F.3d 1330, 1336-37 (Fed. Cir. 2008) (stating that 5 U.S.C. 553, and thus 35 U.S.C. 2(b)(2)(B), do not require notice-and-comment rulemaking for “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice”); In re Chestek PLLC, 92 F.4th 1105, 1110 (Fed. Cir. 2024) (noting that rule changes that “do[ ] not alter the substantive standards by which the USPTO evaluates trademark applications” are procedural in nature and thus “exempted from notice-and-comment rulemaking.”); and JEM Broadcasting Co. v. F.C.C., 22 F.3d 320, 328 (D.C. Cir. 1994) (“[T]he `critical feature' of the procedural exception [in 5 U.S.C. 553(b)(A)] `is that it covers agency actions that do not themselves alter the rights or interests of parties, although [they] may alter the manner in which the parties present themselves or their viewpoints to the agency.'” (quoting Batterton v. Marshall, 648 F.2d 694, 707 (D.C. Cir. 1980))).

B. Regulatory Flexibility Act: As prior notice and an opportunity for public comment are not required pursuant to 5 U.S.C. 553 or any other law, neither a Regulatory Flexibility Act analysis nor a certification under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) is required. See 5 U.S.C. 603.

C. Executive Order 12866 (Regulatory Planning and Review): This rulemaking has been determined to be not significant for purposes of Executive Order 12866 (Sept. 30, 1993).

D. Executive Order 13563 (Improving Regulation and Regulatory Review): The USPTO has complied with Executive Order 13563 (Jan. 18, 2011). Specifically, and as discussed above, the USPTO has, to the extent feasible and applicable: (1) made a reasoned determination that the benefits justify the costs of the rule; (2) tailored the rule to impose the least burden on society consistent with obtaining the regulatory objectives; (3) selected a regulatory approach that maximizes net benefits; (4) specified performance objectives; (5) identified and assessed available alternatives; (6) involved the public in an open exchange of information and perspectives among experts in relevant disciplines, affected stakeholders in the private sector, and the public as a whole, and provided online access to the rulemaking docket; (7) attempted to promote coordination, simplification, and harmonization across government agencies and identified goals designed to promote innovation; (8) considered approaches that reduce burdens and maintain flexibility and freedom of choice for the public; and (9) ensured the objectivity of scientific and technological information and processes.

E. Executive Order 14192 (Deregulation): This regulation is not an Executive Order 14192 regulatory action because it has been determined to be not significant under Executive Order 12866.

F. Executive Order 13132 (Federalism): This rulemaking pertains strictly to federal agency procedures and does not contain policies with federalism implications sufficient to warrant preparation of a Federalism Assessment under Executive Order 13132 (Aug. 4, 1999).

G. Executive Order 13175 (Tribal Consultation): This rulemaking will not: (1) have substantial direct effects on one or more Indian tribes, (2) impose substantial direct compliance costs on Indian tribal governments, or (3) preempt tribal law. Therefore, a tribal summary impact statement is not required under Executive Order 13175 (Nov. 6, 2000).

H. Executive Order 13211 (Energy Effects): This rulemaking is not a significant energy action under Executive Order 13211 because this rulemaking is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required under Executive Order 13211 (May 18, 2001).

I. Executive Order 12988 (Civil Justice Reform): This rulemaking meets applicable standards to minimize litigation, eliminate ambiguity, and reduce burden as set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 (Feb. 5, 1996).

J. Executive Order 13045 (Protection of Children): This rulemaking does not concern an environmental risk to health or safety that may disproportionately affect children under Executive Order 13045 (Apr. 21, 1997).

K. Executive Order 12630 (Taking of Private Property): This rulemaking will not effect a taking of private property or otherwise have taking implications under Executive Order 12630 (Mar. 15, 1988).

L. Congressional Review Act: Under the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq. ), the USPTO will submit a report containing the final rule and other required information to the United States Senate, the United States House of Representatives, and the Comptroller General of the Government Accountability Office. The changes in this rulemaking are not expected to result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. Therefore, this rulemaking is not expected to result in a “major rule” as defined in 5 U.S.C. 804(2).

M. Unfunded Mandates Reform Act of 1995: The changes set forth in this rulemaking do not involve a Federal intergovernmental mandate that will result in the expenditure by state, local, and tribal governments, in the aggregate, of $100 million (as adjusted) or more in any one year, or a Federal private sector mandate that will result in the expenditure by the private sector of $100 million (as adjusted) or more in any one year, and will not significantly or uniquely affect small governments. Therefore, no actions are necessary under the provisions of the Unfunded Mandates Reform Act of 1995. See 2 U.S.C. 1501 et seq.

N. National Environmental Policy Act of 1969: This rulemaking will not have any effect on the quality of the environment and is thus categorically excluded from review under the National Environmental Policy Act of 1969. See 42 U.S.C. 4321 et seq.

O. National Technology Transfer and Advancement Act of 1995: The requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) are not applicable because this rulemaking does not contain provisions that involve the use of technical standards.

P. Paperwork Reduction Act of 1995: This final rule does not involve information collection requirements that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information has a currently valid OMB control number.

Q. E-Government Act Compliance: The USPTO 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.

For the reasons given in the preamble and under the authority contained in 15 U.S.C. 1112 and 1123 and 35 U.S.C. 2, as amended, the USPTO is amending 37 CFR part 6 as follows:

On March 31, 2026, the President issued Executive Order 14399, Ensuring Citizenship Verification and Integrity in Federal Elections, 91 FR 17125 (2026) (“Executive Order” or “Order”). The Executive Order stresses the federal government's “unavoidable duty under Article II of the Constitution of the United States to enforce [f]ederal law, which includes preventing violations of [f]ederal criminal law and maintaining public confidence in election outcomes.” Id. To these ends, the Order points out the need for additional measures concerning the use of the mail in order to facilitate enforcement of federal law, reduce the risk of fraud, and help protect the integrity of federal elections. Id. Following the issuance of the Order, the Postal Service engaged in an interagency review process through the Office of Management and Budget (“OMB”), and subsequently issued a proposed rule regarding the preparation of ballot mail for federal elections to facilitate the enforcement of federal law and to implement best practices for Postal Service operations regarding ballot mail. Ballot Mail for Federal Elections, 91 FR 32915 (June 2, 2026).

Although exempt by 39 U.S.C. 410(a) from the notice and comment requirements of the Administrative Procedure Act (“APA”) (5 U.S.C. 553) regarding proposed rulemaking, the Postal Service invited public comment on the proposed revisions to Mailing Standards of the United States Postal Service, Domestic Mail Manual (“DMM”), incorporated by reference in the Code of Federal Regulations, set forth in the proposed rule. The comment period closed on July 2, 2026.

To ensure the faithful execution of federal law in connection with federal elections, this rule has an immediate effective date. Delaying the effective date would jeopardize implementation of this rule in time for the 2026 general election, which will be held on November 3, 2026. Given injunctions currently in place in State of California v. Trump, No. 26-cv-11581 (D. Mass. June 25, 2026), and League of Women Voters of Massachusetts v. Trump, No. 26-cv-11549 (D. Mass. Aug. 11, 2026), the Postal Service will not take actions to implement the rule specifically for the 2026 election unless and until the government obtains relief from those injunctions. If the government obtains timely relief from the injunctions, implementation immediately thereafter will provide election officials as much time as possible before the next election to comply with the rule's preparation standards for Federal Ballot Mail envelopes, and to prepare to submit data to the Federal Ballot Mail Portal (“Portal”), before the mail-in and absentee ballots subject to this rule aremailed (which generally occurs in September or thereafter, as determined by state law). The Portal will become active (along with the verification process that relies on Portal data) at the time of the publication of the system of records (“SOR”) governing the Portal. Publication of the SOR will occur on or after August 17, 2026 (pending the Postal Service's separate consideration of the comments on that SOR proposal). Finally, the terms “mail-in ballot” and “absentee ballot” are synonymous and interchangeable for the purposes of this rule. These terms include any ballot sent through the U.S. Mail, irrespective of state law terminology.

The Postal Service received more than 200,000 responses during the comment period. These comments consisted primarily of form letters that appeared to be drawn from templates; brief statements of general support for or opposition to the proposed rule; and individualized messages from concerned citizens. Additionally, organizational commenters individually and jointly submitted over 250 letters. This group of commenters included postal unions; federal, state, local, and tribal officials, including state attorneys general, governors, and members of Congress; election officials, including secretaries of state and county election administrators; voting rights organizations; and a range of other issue-based and political advocacy groups.

As discussed below, some opposition to the proposed rule reflected misunderstandings about how the rule will operate in practice; to these misunderstandings the Postal Service offers explanations in the “Operation of the Final Rule” section below.

Supportive comments emphasized several themes. Some discussed voter fraud as a significant problem and lauded the proposed rule for helping to restore voters' confidence in election integrity. One letter, submitted by an Alabama-led coalition of thirteen state attorneys general, contended that the proposed rule would facilitate efforts to combat voter fraud while shoring up public confidence in ways that states could not achieve on their own initiative. That coalition further emphasized that states retain full control of ballots until they are transferred to the Postal Service, and that the proposed rule would help mitigate weaknesses in the chain of custody of Federal Ballot Mail.

Supporting commenters also appraised the proposed rule as enhancing election security by improving the visibility of Federal Ballot Mail in the mailstream; approved of the ballot envelope design standards it would normalize; emphasized the benefits of creating reconcilable data (through the state-specific Mail-In and Absentee Participation Lists (“Lists”)) that offers a neutral administrative check which strengthens confidence in elections; and predicted that the rule would reduce uncertainty as to whether ballots have reached their intended destination.

Supporting commenters further evaluated the actions that state and local election officials may need to take to comply with the proposed rule's standards. The Alabama-led coalition of state attorneys general, for instance, acknowledged that the proposal would impose certain burdens but characterized them as “plainly justified by the security and accountability benefits of the proposed rule,” concluding that the rule “addresses real vulnerabilities inherent in mail-in voting, responds to legitimate and widespread public concerns about federal election integrity, and equips States with tools that strengthen their own oversight capabilities without displacing their authority.”

Finally, many supporting commenters affirmed the Postal Service's statutory and constitutional authority to enact the rule. Some cited Article II, Section 3 of the U.S. Constitution (requiring the President to “take Care that the Laws be faithfully executed”) as legal grounds for the rule, while also endorsing the analysis of authorities set out in the Notice of Proposed Rulemaking. There, the Postal Service cited authority to regulate the mail as embodied in 39 U.S.C. 401 and 404 and described the proposed regulations as setting forth “mailpiece preparation and data reporting standards that can provide information regarding the sending of ballots through the mail that would be available for use by law enforcement, and are consistent with title 39 of the U.S. Code.” The Postal Service addresses the legal authority to promulgate the final rule at greater length in the “Legal Authority” section below.

Finally, some commenters urged the Postal Service to adopt additional measures, including citizenship-verification requirements, as part of a final rule.

Comments received in opposition to the proposed rule generally urged the Postal Service to withdraw the rule or to delay its implementation until after the November 3, 2026, general election. Several commenters argued that the rule should be withdrawn in light of an injunction entered by the United States District Court for the District of Massachusetts ( California v. Trump, 2026 WL 1826490 (D. Mass. June 25, 2026)) and a now-stayed injunction issued by the United States District Court for the District of Columbia, in litigation arising out of a 2021 settlement with the National Association for the Advancement of Colored People (“NAACP”) in the United States District Court for the District of Columbia ( NAACP v. U.S. Postal Serv., 2026 WL 1893762 (D.D.C. July 1, 2026)).

Concerns raised by opposing commenters largely fell into three broad categories, each of which is addressed in greater detail below:

• The alleged legal deficiencies of the proposed rule;

• Concerns regarding the purported practical implementation challenges;

• Concerns about the proposed rule's alleged broader political and social impact.

With respect to legal objections, opposing commenters argued that the Postal Service lacks legal authority to adopt or implement the proposed rule. Commenters further argued that, even if the Postal Service possesses the requisite authority, adoption of the proposed rule would be arbitrary and capricious. These legal objections are addressed at length in the “Legal Authority” and “Impact of the Final Rule” sections below.

With respect to the substance of the proposed rule, opposing commenters frequently focused on the Portal, the acceptance (or verification) provisions, and the fact that the Postal Service would refuse to accept certain ballots for federal elections that states tender without satisfying the data-entry obligations that the rule would impose. Although these provisions were uniformly opposed by commenters not otherwise supportive of the rule, some expressed greater openness to the envelope-design requirements, asserting that such requirements would fall more squarely within the Postal Service's sphere of authority. Thus, in the opinion of some commenters, the envelope design provisions for Outbound and Return Federal Ballot Mail in DMM 705.24.3 could be retained while the verification, Portal, and optional notice provisions should be removed. In a similar vein, at least one commenter signaled conditional support for the proposed rule so long as all mandatory provisions were made voluntary. Comments raising specific implementation concerns—arising from asserted costs and burdens associated with implementation before the 2026 general election, as well as those costs and burdens that would purportedly be incurred on an ongoing basis; the potential risk of administrative or data errors leading to ballot rejection; and the Postal Service's perceived lack of readiness—are addressed at length in the sections below.

A number of commenters urged the Postal Service to publish a system of records notice (“SORN”) under the Privacy Act and raised questions addressable through the SORN, including whether personally identifiable information will be collected and stored, how long such information will be retained, which entities and personnel will have access to it, whether it will be shared with other federal entities or contractors, what cybersecurity safeguards will be implemented, and what remedies will be available in the event of improper disclosure. The Postal Service published a SORN on July 17, 2026. 91 FR 44880. The public was invited to submit comments relevant to the SORN and related Privacy Act considerations in that proceeding.

The Postal Service also received a significant number of comments that fall outside the scope of this proceeding.

First, many commenters described voting by mail as an effective means of exercising their franchise due to their individual circumstances. Other commenters, by contrast, criticized mail-in voting as a general practice and urged the Postal Service to cease delivering ballot mail altogether. The Postal Service takes no position on whether, or the extent to which, states should utilize the mail as part of the administration of their elections. Indeed, the Postal Service does not advocate for or against voting by mail. Instead, the Postal Service collects, processes, transports, and delivers mail and packages, and remains fully committed to transporting all types of mail, including Federal Ballot Mail that conforms with the Postal Service's mail preparation, data reporting, acceptance, and entry standards. As discussed further below, under the proposed rule, and as retained in the final rule, the states retain full authority to decide whether to utilize the U.S. Mail as part of their electoral systems, and to determine who should be eligible to vote by mail.

Second, comments that comprehensively address state and local election administration or the Postal Service's election mail procedures fall outside the scope of this proceeding. By way of example, one commenter raised concerns regarding the accuracy of voter registration rolls, recounted their experience of observing purported irregularities during the 2020 election cycle, and urged the Postal Service to undertake a comprehensive review of all mail-in ballot procedures. Comments in this vein, which concern the entire system of election mail administration, rather than the DMM provisions set forth in the Notice of Proposed Rulemaking, will not be addressed below.

Third, numerous comments raised concerns influenced by partisan political speculation. This included conjecture about the underlying intent of the Order and the impact it may have on voter turnout or election outcomes. Such remarks are speculative and exceed the scope of this proceeding. In any event, as explained further below, this rule does not—nor is it intended to—facilitate any form of voter suppression, affect election outcomes, or target particular demographics, districts, or states.

Fourth, a number of comments raised issues that fall outside both the scope of this proceeding and the Postal Service's authority generally, extending the rule's logic beyond election mail and/or invoking executive branch entities not involved in Postal Service operations. Some, for example, proposed that ballots be accepted only if they arrive by election day; demanded that mail-in voting be discontinued; urged Congress to enact the Safeguard American Voter Eligibility (SAVE) Act; and weighed in on sections of Executive Order 14399 that do not concern the Postal Service. Comments addressing election deadlines, the policy of mail-in voting, other election administration changes, pending legislation, and other entities' law enforcement priorities are not relevant to this proceeding.

Fifth, some commenters raised broad issues of service performance and operational decision-making. Such issues include which facilities process particular mail classes; postmarking practices; service performance complaints; the scope of Postal Police Officers' authority; operational changes or service commitments for ballots mailed to and from military and overseas voters; and collateral consequences to the Postal Service's brand reputation or revenue if a final rule is issued. Such comments are beyond the scope of this proceeding and will not be addressed below.

Sixth, the Postal Service received numerous comments addressing matters unrelated to election mail or to the matters discussed in this proceeding. These included comments expressing personal opinions of the President; remarks concerning nominees to the Postal Service Board of Governors and criticisms of the Board's leadership; objections to postage and stamp prices; requests for congressional action; appraisals of judges who have issued decisions concerning election mail; appraisals of the current and former Postmaster General; comments aimed at postal management and staff; comments on postal reform and privatization; comments on voter intimidation; comments regarding the role of public election auditors and observers; opinions about the impact of the Supreme Court's recent decisions dealing with the Voting Rights Act; comments regarding the Federal Election Commission's Clearinghouse on Election Administration; and feedback on other administrative proceedings, including a Department of Justice (“DOJ”) rulemaking concerning the review of state bar complaints and allegations against DOJ attorneys and a separate Postal Service rulemaking concerning the mailability of firearms. Such comments are also beyond the scope of this proceeding and will not be addressed below.

The Postal Service has carefully considered all comments received. The summary above is intended to broadly cover the issues they raise. Substantive legal objections, operational issues, requests for additional study, suggested revisions to the proposed rule, and additional topics related to the proposed rule are addressed in the dedicated subsections that follow.

Numerous commenters asserted, on varying grounds, that the Postal Service lacks the legal authority to implement the proposed rule. This section recites the specific arguments advanced by commenters, followed in each case by a response affirming the legal basis of the DMM changes.

Ballot mail presents unique considerations, given the role it plays in the electoral process. This role has also grown in importance in recent years, as many states have expanded eligibility for mail-in voting, with some states moving to universal mail-in voting. The number of voters using the mail to receive and cast their ballots has commensurately increased. The Postal Service's policies regarding election mail in general, and ballot mail in particular, have evolved to reflect these unique considerations. From an operational standpoint, the Postal Service deploys special practices on a nationwide basis for the processing and delivery of ballot mail to ensure that such mail is prioritized across the postal network and timely delivered. These practices include the use of extraordinary measures during the period surrounding federal general elections to accelerate the delivery of return ballot mail beyond the Postal Service's typical operations when its employees are able to identify a mailpiece as a ballot. In recognition of the importance of ballot mail, the Postal Service regularly issues nationwide guidance documents in federal election cycles, has dedicated points of contact to coordinate with election officials, and has created a dedicated election mail group tasked with overseeing the Postal Service's election mail procedures nationwide. The Postal Service also amended DMM 703.8.0 in 2022 to add its longstanding best-practices recommendations concerning ballot mail to facilitate efficient handling and prompt delivery and to improvemailpiece visibility. Some jurisdictions have adopted those recommendations.

The use of the U.S. Mail to vote also implicates federal interests regarding whether the postal system is being used in a manner that is consistent with federal law, including those laws governing who is allowed to vote in federal elections. Executive Order 14399 emphasizes the constitutional obligation of the Executive Branch to take care that these laws are faithfully executed, and discusses the importance of applying additional measures concerning the use of the mail to vote in federal elections, in order to facilitate enforcement of federal law, reduce the risk of fraud, and help protect the integrity of federal elections—a point subsequently echoed by some comments supporting the rule. It is fully appropriate for the Postal Service, as an establishment of the Executive Branch, to take actions deemed necessary to ensure the faithful execution of federal law and enhance the efficiency of postal operations. As discussed below, the Postal Service has the statutory and constitutional authority to take such actions.

The Postal Service received many comments expressing differing views on the incidence of voter fraud and its impact on election integrity. Some commenters, in voicing support for the proposed rule, portrayed voter fraud as a significant problem, while commenters opposing the rule argued that it is not a problem, and disputed the Postal Service's legal authority and rationale to impose preparation requirements for Outbound Federal Ballot Mail.

While the Postal Service acknowledges the range of disagreement on this point, the incidence of voter fraud does not impact the proposed rule's legal grounding. As discussed in the Notice of Proposed Rulemaking and in further detail below, the rule will afford significantly enhanced visibility into the sending of Federal Ballot Mail, and this will in turn facilitate law enforcement efforts by enabling law enforcement to better detect potential issues meriting further investigation. Such enhanced visibility will help identify potential issues that would have otherwise gone undetected; at the very least, it will provide increased assurance that any potential issues are more capable of being effectively identified and investigated. Cf. Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 196-97 (2008) (noting the propriety of taking steps designed to detect and deter potential electoral fraud, which also has the benefit of “safeguarding voter confidence” in elections). Whether or not voter fraud is common or uncommon, the Postal Service has the legal authority to take the measures in this rule to facilitate enforcement of federal law, reduce the risk of fraud, and help protect the integrity of federal elections.

Numerous commenters argued that the Postal Service, through the proposed DMM provisions, would supplant the states' authority to administer elections. Some of these comments characterized the proposed rule as inconsistent with the Elections Clause of the Constitution, Article I, Section 4, Clause 1 (vesting authority over the “manner of elections” with the States and Congress), and with the 10th Amendment (reserving all non-enumerated powers to the states). According to many of these comments, the proposed rule would allegedly recast the Postal Service as an “auditor of state voter rolls and an arbiter of ballot validity,” a “gatekeeper of who can vote by mail,” or a “checkpoint for voting.” In a similar vein, commenters asserted that the proposed rule contravenes the separation of powers by arrogating powers that lie with Congress. Finally, at least one commenter argued that, by requiring that states expend resources to comply with the standards mandated by the Postal Service, the proposed rule would unconstitutionally commandeer State resources.

These comments are fundamentally erroneous. The rule does not recast the Postal Service as an election administrator, nor dictate the manner of elections in the states. On the contrary, it sets forth mailpiece design and data reporting standards tied to the use of the mail. States maintain complete control over their own voter registration rolls, deciding who within their jurisdiction is eligible to vote by mail. States also retain complete autonomy to determine the extent to which they utilize the postal system as an aspect of their elections. The rule is plainly consistent with the Elections Clause, the 10th Amendment, and the separation of powers, as well as the Postal Service's statutory and regulatory authority.

Some commenters acknowledged the Postal Service's authority to impose general standards governing the dispatch of election mail, including ballot mail. For instance, election mail must today conform with the DMM provisions that apply to the class of mail in which it is entered, and users of such mail must pay the required postage. The requirement to follow federal mail regulations if states choose to use the federal postal system, then, cannot inherently violate the Elections Clause, nor would it in any way “commandeer” state resources. The Postal Service is not constitutionally obliged to defer to a given state's Outbound Federal Ballot Mail design preferences or accept a given state's decision not to use barcodes. On the contrary, establishing a standardized set of mailpiece design requirements for Outbound Federal Ballot Mail—requirements that, being tailored to enable more efficient handling of Outbound Federal Ballot Mail, improve such mail's visibility in the mailstream, and Postal Service operations—lies within the Postal Service's authority. These requirements do not amount to election administration, nor do they usurp state resources; rather, they regulate the use of the mail to improve operational efficiency and support the faithful execution of federal law. In this regard, as a general matter, states do not have to use the U.S. mail to conduct their elections, and the Postal Service can take steps to ensure that if states do use the mail, that use occurs in a manner that achieves these legitimate purposes.

Similarly, the requirement to report mail piece-level data into the Portal is not tantamount to election administration. States retain full control over who within their jurisdictions is (or is not) eligible to vote by mail in federal elections; they would, moreover, determine who is enrolled in their respective Mail-In and Absentee Participation Lists. DMM 705.24.4 only requires that states provide to the Postal Service certain information inscribed on the Outbound and Return Federal Ballot Mail envelopes that they mail to voters, prior to or at the time of the outbound mailing. This information, which necessarily lies in the states' possession, would not be subject to revision by the Postal Service. Eligible voters will therefore be listed by and at the discretion of election officials, and the Postal Service will not second-guess the states' submissions. State election officials will thus retain full control over who is permitted to vote in federal elections in their state by U.S. mail.

Finally, the verification process aims only to ensure that states adhere to the mailpiece design and data reporting standards. By checking the outbound barcode, the Postal Service will be able to verify that the state or political subdivision thereof has satisfied the Portal data entry requirements ( e.g., certifying that Outbound and Return Federal Ballot Mail envelopes have been submitted for Mailpiece Design Analyst (“MDA”) review and that feedback has been received, all required data fields have been entered). Again, the Postal Service will exercise no discretion or authority over whether an individual should or should not be on the list a state provides.

This rule does not involve or authorize inspection of a mail-in ballot's contents, review of individual voter's eligibility, or auditing of state voter rolls. It instead focuses exclusively on exterior mailpiece criteria and barcode scan data. As DMM 704.24.6 explains, “[t]his rule relates only to the use of the U.S. Mail,” leaving states “fully responsible for the contents of [their] Mail-In and Absentee Participation List.” 91 FR 32929. Specifically, DMM 705.24.1.b limits enrollment in the Portal to users authorized by a state's chief election official; accordingly, and as detailed in DMM 705.24.4.3, the Postal Service will compile and return to each state only the information that the state itself has submitted, thus preserving the states' control over who is (and is not) able to vote by mail. It further bears emphasizing that the verification process delineated in DMM 705.24.5 would not involve voter eligibility determinations in any way; it will not entail scrutiny into, or any attempt to evaluate, individual voters. Finally, as plainly stated in DMM 705.24.5.2, “Postal Service personnel are not authorized to open mail sealed against inspection.” In short, the rule adds a layer of security and accountability while leaving the administration of elections firmly in the hands of the states.

Some commenters raised First Amendment concerns, noting that the Supreme Court has long recognized that voting is a protected form of political participation and that compelled disclosure of political participation can chill the exercise of First Amendment freedoms. Though some commenters correctly acknowledged that the Postal Service does not propose to disclose voting choices, numerous commenters nevertheless alleged that the rule would compel the creation and maintenance of records identifying citizens who engage in mail-in or absentee voting; speculated that such records may be subject to future disclosure, misuse, breach, or political targeting; and advised against collecting personally identifiable election-participation information absent a compelling need and robust safeguards.

Other commenters invoked the Privacy Act, and 5 U.S.C. 552a(e)(7) in particular, as a statutory bar on the maintenance of records “describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity[.]”.

These First Amendment concerns are misplaced. First, the Postal Service reiterates that it will not collect or record party affiliation and will not inspect ballot contents. Postal Service personnel are not authorized to open mail sealed against inspection. Instead, through the Portal the Postal Service will maintain data of the sort that is routinely generated for mail from the exterior of the mailpiece, including addressing and barcode information.

The rule's enactment will not entail “compelled disclosure of political participation.” Supreme Court cases on “compelled disclosure” in the electoral context address compelled public disclosure of personally identifiable election participation information, such as a public records law making the signatures on a referendum petition publicly available upon request. John Doe No. 1 v. Reed, 561 U.S. 186, 192 (2010). The rule, by contrast, neither directs nor contemplates the public disclosure of Mail-In and Absentee Participation Lists or the underlying Portal data.

The Postal Service recognizes the importance of ensuring that the Lists are protected from “future disclosure, misuse, breach, or political targeting.” The Notice of Proposed Rulemaking indicated that “steps necessary for the creation of a new SORN in accordance with the Privacy Act” would be initiated. 91 FR 32971. On July 17, 2026, the SORN was published in the Federal Register . The SORN provides details regarding retention periods, access, disclosure, notification, and contest procedures under 39 CFR 266.5. 91 FR 44880. The notice specifies the categories of records covered, a five-year retention period, encryption of online data transmissions, and badge- and log-on-controlled access limited to personnel whose duties require it. The Postal Service can therefore confirm that no data will be collected through the Portal until a system of record (SOR) is in effect, and that records will be disclosed and maintained consistently with any final SOR, which does not allow public disclosure of the Lists.

The proposed rule is also consistent with 5 U.S.C. 552a(e)(7), which applies only to records revealing “how any individual exercises rights guaranteed by the First Amendment.” Courts have interpreted this “how” to mean gathering and recording the “content” of expressive activity under the First Amendment. E.g., Reuber v. United States, 829 F.2d 133, 143 (D.C. Cir. 1987) (holding that a letter reprimanding an employee for privately published essays did not depict “how” he had exercised First Amendment rights under the Privacy Act because it did not discuss “the content” of his privately published essays and made “only vague allusions to the manner in which he expressed his views”).

This section of the Privacy Act could only be invoked here if the Postal Service were gathering and maintaining records indicating the “content” of an individual's exercise of their First Amendment rights ( i.e., the content of an individual's ballot, and thus the candidate for which an individual voted). That is not the type of information being collected under the rule. The state-specific Mail-In and Absentee Participation Lists indicate whether a state planned to mail a blank ballot to any given individual. This information does not describe “the content” of expressive activity under the First Amendment, but simply indicates the specific means by which an individual may have chosen to receive or return their ballot.

Furthermore, Section 552a(e)(7)'s prohibitions are operative “unless pertinent to and within the scope of an authorized law enforcement activity”—and as stated above, this rule is enacted to assist in the faithful execution and enforcement of federal law. See Jabara v. Webster, 691 F.2d 272, 280 (6th Cir. 1982) (Section 552a(e)(7) “does not bar the maintenance of records describing how a person exercises First Amendment rights if there is a direct nexus to an authorized criminal, civil or administrative law enforcement activity”). The applicability of Section 552a(e)(7)'s law enforcement exception to DMM 705.24.4 is further confirmed by the DOJ Office of Legal Counsel's recent memorandum opinion, “Authority to Obtain and Share Statewide Voter Roll Data.” 50 Op. OLC _(May 12, 2026), Slip. Op. at 25-29 (explaining that Section 552a(e)(7)'s law enforcement exception permits retention of statewide voter-registration lists when a SORN is published).

Some commenters argued that the proposed rule would violate the Fourth Amendment by allegedly:

• Allowing unreasonable search of voter information encoded on the outside of Federal Ballot Mail envelopes;

• Permitting unreasonable seizure of Federal Ballot Mail encoded with voter information; and

• Requiring voter information to be encoded on the outside of Federal Ballot Mail envelopes and allowing suspicionless searches (also known as “administrative” or “special needs” searches) of that information for general law-enforcement purposes that fall outside of the Postal Service's lawful mission of mail delivery.

The Postal Service notes that courts have long held that there is no reasonable expectation of privacy in information displayed on the exterior of a mailpiece because it is exposed to anyone's view, including postal employees who must rely upon it in the performance of their duties. E.g., United States v. Choate, 576 F.2d 165, 175-77 (9th Cir. 1978). Thus, the Postal Service's creation of “mail covers”—images of the outside cover of envelopes or packages in its custody—for general law enforcement purposes do not constitute a “search” under the Fourth Amendment. See generally 39 CFR 233.3. Likewise, the government's use of voter information displayed or encoded on Federal Ballot Mail envelopes would not constitute a Fourth Amendment “search”—administrative or otherwise—because it invades no reasonable expectation of privacy.

Some commenters argued that once a state provides for absentee voting, the state has enabled a qualified individual to exercise their fundamental right to vote in a way that was previously unavailable; and that, as a result, the state must afford appropriate due process protections, including notice and a hearing, before rejecting an absentee ballot. Commenters analogized this principle (which applies via the Fourteenth Amendment to the states) to the Fifth Amendment, which, in their view, requires the federal government to provide adequate due process before restricting voters' use of otherwise permissible voting methods.

The Postal Service reiterates that the rule adopted herein does not determine any individual's eligibility to vote and thus does not raise the specter of a due process violation. The verification procedures set forth in DMM 705.24.5 are instead designed to ensure that states sending Federal Ballot Mail have transmitted to the Federal Ballot Mail Portal the information required for each state-specific Mail-In and Absentee Participation List. Such information lies with the states, which already fully control who is, and who is not, included on the Lists; voters themselves cannot provide all of that information ( e.g., unique Intelligent Mail barcode (“IMb”) on the outbound and return envelope), and the Postal Service cannot correct or amend it. While the verification process may identify missing data or other errors between Outbound Federal Ballot mailings and the Portal data, the states themselves control the information that they transmit (as they do already, even in the absence of this rule), and any procedural protections attaching to such information must accordingly be provided by the states. Ultimately, with or without this rule, states are responsible for managing their own voter rolls, and deciding who is or is not eligible to vote by mail.

Some commenters raised concerns regarding the guarantee of equal protection under the Fourteenth Amendment (and subsequently incorporated into the Fifth Amendment by Bolling v. Sharpe, 347 U.S. 497 (1954)). For example, at least one commenter asserted that the exemption for ballots covered by the Uniformed and Overseas Citizens Absentee Voting Act (“UOCAVA”) affords unequal legal protection (on the mistaken grounds that UOCAVA covers military personnel but not overseas civilians). Moreover, at least one commenter argued that by creating the possibility of noncompliance, the rule's envelope-design standards and verification process might restrict some voters' ability to vote by mail, thus withholding equal protection under the law.

However, another commenter reasoned that uniform national standards—far from raising equal-protection issues—resolve these constitutional concerns. Relying on Jones v. U.S. Postal Service, 488 F. Supp. 3d 103 (S.D.N.Y. 2020), the commenter explained that Fifth Amendment equal-protection claims were likely to succeed where there were no standards or uniformity for handling election mail; this inconsistency can result in intrastate and interstate disparities in citizens' voting power. The proposed rule, the commenter argued, eliminates such concerns by setting a single, nationwide standard for Federal Ballot Mail.

The Postal Service agrees with this commenter that the rule safeguards, rather than abrogates, equal protection. The rule is neutral on its face and uniform in application: DMM 705.24.3 applies objective requirements to all Outbound and Return Federal Ballot Mail envelopes without distinction, and the data entry and verification processes delineated by DMM 705.24.4 and 705.24.5, respectively, likewise apply to all states equally. Furthermore, as noted, the rule promotes multiple rational objectives through nationwide standards and implementation, including the enhancement of Federal Ballot Mail visibility in the mailstream, Postal Service operations, and the facilitation of law enforcement objectives. Cf. United States v. Salerno, 481 U.S. 739, 734 (1987) (holding that facial challenges to statutes “must establish that no set of circumstances exists under which the Act would be valid”); Reno v. Flores, 507 U.S. 292, 301 (1993) (extending the Salerno standard to federal agency regulations). The rule's exemptions also rest on a legitimate, nondiscriminatory basis. Congress, for example, created in UOCAVA a separate federal statutory scheme with its own requirements, including different timing constraints and deadlines. McDonald v. Board of Election Comm'rs, 394 U.S. 802, 809 (1969) (allowing exceptions within an absentee ballot voting scheme provided “some rational relationship to a legitimate state end”). Furthermore, as indicated, UOCAVA coverage does in fact extend to non-military U.S. citizens who reside outside the United States. 52 U.S.C. 20310(5)(B)-(C).

Multiple commenters argued that, as a general matter, the Postal Service lacks the statutory authority to implement the proposed rule. Along similar lines, some commenters alleged specifically that, because no provisions in title 39 explicitly contemplate mandatory standards regarding Federal Ballot Mail, title 39 impliedly bars the Postal Service from implementing such standards.

These statutory arguments are unavailing. As explained in the Notice of Proposed Rulemaking, 39 U.S.C. 401(2) authorizes the Postal Service “to adopt, amend, and repeal such rules and regulations, not inconsistent with this title, as may be necessary in the execution of its functions under this title and such other functions as may be assigned to the Postal Service under any provisions of law outside of this title,” and further grants the Postal Service “all other powers incidental, necessary, or appropriate to the carrying on of its functions or the exercise of its specific powers.” Id. § 401(10). Furthermore, Section 404 grants the Postal Service specific powers, including the power “to provide for the collection, handling, transportation, delivery, forwarding, returning, and holding of mail, and for the disposition of undeliverable mail.” Id. § 404(a)(1).

Setting preparation and data-reporting standards for a defined category of mail falls squarely within that statutory authority. Supreme Court precedent confirms the Postal Service's expansive rulemaking authority. As noted by one commenter, in U.S. Postal Service v. Council of Greenburgh, the Court explained that under 39 U.S.C. 401 “the Postal Service is broadly empowered to adopt rules and regulations.” 453 U.S. 114, 122 (1981). This commenter further argued that the Postal Service has long managed election mail as a distinct category under its authority. In Rider v. United States, the commenter explained, the Claims Court recognized that the Postal Service issues “detailed regulations and management instructions concerning the various classes of mail and types of postal services in its Domestic Mail Manual” pursuant to Section 404(a), and that its Postal Operations Manual establishes “special operating procedures” to ensure that election and campaign mailings “are processed properly, delivered with equitable care and attention and that proper records are maintained.” 7 Cl. Ct. 770 (1985). Courts have recognized the Postal Service's broad regulatory authority in other contexts as well. See Grover City v. U.S. Postal Serv., 391 F. Supp. 982, 986 (C.D. Cal.1975) (finding postal regulations setting mail receptacle standards to be valid exercises of § 404(a)(1) delivery power and § 401(2) rulemaking authority); Rockville Reminder v. U.S. Postal Serv., 480 F.2d 4, 7 (2nd Cir. 1973) (upholding postal regulations prohibiting mailbox installations facilitating private delivery of advertising circulars under the Postal Service's broad rulemaking authority); Egger v. U.S. Postal Serv., 436 F. Supp. 138, 142 (W.D. Va. 1977) (upholding the Postal Service's interpretation of its regulations governing mail addressed to people at school).

The Postal Service has the statutory authority to set forth mail preparation, acceptance, and entry standards that are necessary to achieve the functions assigned to it by law—functions that include investigation into the potential misuse of the mail and coordination with other federal law enforcement entities. See 39 U.S.C. 401(2); cf. 18 U.S.C. 3061(b) (authorizing the Postal Service to investigate crimes regarding “the use of the mails” and other appropriate crimes as determined by agreement with the Attorney General); 52 U.S.C. 10307, 20511. The rule sets forth tailored requirements regarding the use of the mail—the design of Federal Ballot Mail envelopes and the provision of mailpiece-level data concerning such ballot mailings—to help ensure the faithful execution of federal law; and the information yielded by these requirements would be available for use by law enforcement. Additionally, the rule would implement the Postal Service's longstanding best practices for ballot mail, thereby advancing execution of a key Postal Service function: processing and delivery of the Nation's mail. Contrary to commenters' arguments, achieving such purposes is within the scope of the Postal Service's authority to take “necessary” action to regulate the use of the mail and achieve its assigned functions.

There is also no basis to conclude that the Postal Service's broad statutory authority regarding the postal system encompasses all types of mail except ballot mail, and specifically Federal Ballot Mail. On the contrary, the Postal Service has acted pursuant to its existing authority to take many actions regarding ballot mail, reflective of the unique considerations raised by such mail, including by establishing special operational procedures and issuing best practice recommendations. While the Postal Service is now taking additional action to make some of these recommendations mandatory, and to add a requirement that states provide mailpiece-level detail about their mailings, such additional steps equally fall within the Postal Service's authority to execute on functions as assigned.

Multiple commenters contested the state-specific Mail-In and Absentee Participation Lists' grounding in law enforcement objectives, on the theory that the Lists, and the purposes to which they will allegedly be put, exceed the Postal Service's authority to investigate crimes involving election fraud. In general, these comments assert that the criminal statutes cited by the Notice of Proposed Rulemaking either have nothing to do with voting or are related to voting but are not enforceable by the Postal Service. Specific arguments include:

• The U.S. Code does not confer on the Postal Service authority to enforce election statutes. Commenters asserted that 52 U.S.C. 10307 and 20511 do not expressly name the Postal Service, and as such cannot be taken to confer enforcement or investigative authority on the Postal Service with respect to voter intimidation and fraudulent registration or voting. Conversely, 39 U.S.C. 404(a)(6) confers on the Postal Service the power “to investigate postal offenses and civil matters relating to the Postal Service,” not election law per se.

• The investigatory and enforcement powers conferred by statute on Postal Inspectors are limited. Some commenters averred that 18 U.S.C. 3061(b) grants only limited law enforcement powers to Postal Inspectors, which are confined to “the enforcement of laws regarding property in the custody of the Postal Service, property of the Postal Service, the use of the mails, and other postal offenses,” and to any offenses subject to interagency agreement with the Attorney General. This grant of authority, some asserted, does not authorize the Postal Service to collect data on voters. Similarly, the regulations in 39 CFR 233.1(b) do not expressly grant Postal Inspectors authority to administer elections, determine voter eligibility, maintain voter registration databases, or conduct election fraud investigations unrelated to postal offenses.

• The proposed rule lacks a factual predicate. To initiate an investigation, the Postal Service requires either direct, visible evidence of a crime or reasonable grounds to suspect that a crime is or has been committed. Some commenters characterized voter fraud, including through use of the mail, as rare. Commenters contended that the proposed rule nevertheless assumes that every mail-in voter may cast a fraudulent vote and must be placed under surveillance.

• Lack of a clear statement conferring investigative or enforcement authority. Commenters argued that if Congress had intended to deputize the Postal Service as an adjunct of federal election law enforcement, it would have said so clearly.

Each of the above arguments is unpersuasive. The proposed rule establishes mailpiece preparation and data reporting standards that will significantly enhance the visibility of Federal Ballot Mail. The information generated by the implementation of those standards would be available for use by appropriately authorized law enforcement entities to help ensure the faithful execution of federal law. The determination of whether to investigate, refer, charge, or prosecute any matter relating to illegal voting, voter fraud or voter intimidation rests, and will continue to rest, with the entities to which Congress has assigned such functions. Moreover, as noted above, the rule does not dictate the administration of elections, the determination of voter eligibility, or the maintenance of voter registration databases—all of which is controlled by the states-nor does the rule authorize the Postal Service to conduct investigations unrelated to postal offenses.

Concerning the proposed rule's factual predicate (or alleged lack thereof), claims regarding the empirical incidence of voter fraud do not, as explained above, affect the Postal Service's authority to adopt these regulations. The Postal Service further emphasizes that, under the rule, it will not surveil mail-in or absentee voters. Under the rule's plain terms, information generated at acceptance is embedded in exterior mailpiece indicia and barcode scan data; Postal Service personnel are not authorized to open mail sealed against inspection; and no provision in DMM 705.24 authorizes review of any ballot's contents.

Concerning the implied clear statement rule discerned by some commenters, the Postal Service does not purport to discover “transformative power” in a “long-extant” statute. Rather, the envelope design, automation, barcoding and design review standards set forth by DMM 705.24.3 are similar to mail preparation requirements routinely applied across other mail categories. The rule, therefore, does not introduce new and unsettled “major questions”—a point explained in greater depth below.

Some commenters asserted that the proposed rule would violate the “major questions doctrine,” which applies to agency actions purporting to “discover in a long-extant statute an unheralded power representing a transformative expansion in its regulatory authority.” West Virginia v. EPA, 597 U.S. 697, 724 (2022). Such comments theorized that as the right to vote is a fundamental political right, and as the Postal Service has no authority to adopt rules regulating voting in federal elections without express congressional authorization, the proposed rule would derive from its stated sources of statutory authority just such “transformative” powers.

As an initial matter, it bears repeating that this rule does not regulate the right or eligibility to vote, voter registration, or the manner by which states administer elections. States will retain full autonomy to decide whether (and to what extent) they utilize the U.S. Mail as part of their electoral systems and who can use ballot mail to cast a vote. The rule instead imposes modest data and mail preparation requirements on Federal Ballot Mail envelopes. The preparation requirements have for years been issued as best-practice guidance—and are substantively similar to the standards already employed to varying extents by some election officials. And the data standards require that states provide information regarding the exterior of Federal Ballot Mail envelopes that they will already have available as part of their ballot mailings. The verification procedures simply help to ensure these standards have been met prior to accepting an Outbound Federal Ballot mailing. Furthermore, the Postal Service is authorized to regulate certain mail preparation requirements in furtherance of federal law enforcement and to advance its ability to efficiently handle the mail. On its face, then, the rule does not represent any “transformative expansion” of regulatory authority, rendering the “major questions” doctrine inapplicable.

By way of further explanation, major questions arise when agencies claim to “discover in a long-extant statute an unheralded power representing a transformative expansion in its regulatory authority.” West Virginia, 597 U.S. at 724. Per West Virginia, “the history and breadth of the authority that [the agency] has asserted” distinguishes “extraordinary cases” from ordinary ones. Such cases, which “provide a reason to hesitate before concluding that Congress meant to confer such authority,” typically involve an agency reaching beyond its area of expertise. Id. at 721; see also, e.g., Alabama Ass'n of Realtors v. HHS, 594 U.S. 758, 764 (2021) (the Centers for Disease Control regulating landlord-tenant relations); NFIB v. OSHA, 595 U.S. 109, (2022) (OSHA regulating a public health risk rather than workplace hazards). By contrast, in United States v. White, 97 F.4th 532, 540 (7th Cir. 2024), the Seventh Circuit refused to apply the major questions doctrine in a case plainly lacking “the hallmarks of the truly extraordinary cases,” with no claim to “unheralded power.” In Nebraska v. Su, 121 F.4th 1 (9th Cir. 2024), the Ninth Circuit likewise held the major questions doctrine not to apply to a federal contractor minimum wage mandate which, following a history of presidents setting federal contractor rules, constituted neither a “transformative” nor an “unheralded” expansion of regulatory power. Id. at 14.

Similar to the facts in White and Su, envelope preparation and data transmission and verification requirements of the sort contemplated here fall well short of an “unheralded transformation” of regulatory authority, lack “the hallmarks of the truly extraordinary cases,” and do not derive “unheralded power” from a “long-extant statute.” Indeed, the Postal Service has for years conditioned eligibility for certain rate levels on specific requirements, including barcodes and Mailer IDs, and has done so under the same statutory authority that underlies this rule. For example, the Full-Service Intelligent Mail program, described in DMM 705.23, offers automation discounts for commercial mailers in exchange for end-to-end mail tracking, electronic documentation, and address corrections. Participation in this program is mandatory for automation pricing. See 78 FR 23,137 (Apr. 18, 2013) (requiring the use of “full-service” Intelligent Mail “to qualify for automation prices for postcards (First-Class Mail® only), letters, and flats when mailed using the following services: First-Class Mail, Standard Mail and Periodicals; and for flats mailed at Bound Printed Matter prices”). If the Full-Service IMb regime is lawful under Sections 401 and 404, and it is, then the proposed rule cannot be said to effect an “unheralded transformation” of the regulatory prerogatives embedded in those statutes. Barcode, logo, automation-compatibility, design review, and electronic documentation conditions on defined mail categories constitute normal exercises of Postal Service authority; they have, moreover, in large part, long been included in the Postal Service's guidance to state Boards of Elections.

Other major-questions cases focus on the “economic and political significance” of the authority at issue. Learning Res., Inc. v. Trump, 607 U.S. 229, 246 (2026); see also, e.g., Biden v. Nebraska, 600 U.S. 477, 502 (2023). Here, the economic significance of the rule is slight as compared to prior major-questions cases. See Learning Resources, 607 U.S. at 246 (“could be worth $15 trillion”); Nebraska, 600 U.S. at 502 (“between $496 billion and $519 billion”). And although actual changes to eligibility of voters to vote by mail might fairly be described as having political significance in some sense, this rule makes no such changes—it instead leaves voter-eligibility unchanged, requiring only certain modest envelope-design and data reporting standards, most of which have long been recommended by the Postal Service (and are voluntarily complied with by some jurisdictions already). It follows that the rule's incorporation of these practices does not raise any “major question” in the relevant sense.

Some commenters noted that, in 39 U.S.C. 3001-3018, Congress specified categories of nonmailable materials with robust protections for all forms of mail not included. These commenters then argued that the rule effectively creates a new category of “nonmailable matter,” and thereby exceeds title 39's statutory scheme. On this basis, they contended that the rule and the verification process that it establishes is ultra vires.

The rule does not create a new category of “nonmailable matter” into which Federal Ballot Mail as a class may generally fall. Rather, it is designed to ensure that Federal Ballot Mail envelopes meet certain preparation standards consistent with operational best practices and to condition acceptance on the provision of certain mailpiece-level data regarding those ballot envelopes—both of which support the execution of federal law. The rule does not prohibit federal ballots from being mailed altogether. While it is true that outbound mail-in ballots may be rejected from the mailstream as a consequence of noncompliance with the rule's requirements, conditions on the acceptance of mailable matter are distinct from a determination that the matter is nonmailable. Moreover, compliance is straightforward: states need only provide information that is inscribed on the outside of Federal Ballot Mail envelopes, which will necessarily be in their possession. And ample resources are available to assist states with ballot mail envelope design, should such assistance be required. Compliance is verified by checking a single data point (IMb) on Outbound Federal Ballot Mail prior to acceptance. Although Outbound Federal Ballot mailings that fail the verification process may be temporarily rejected (and thus not permitted to enter the mailstream), any errors may be corrected and the mailpieces will thereafter be accepted for mailing.

Rather than usurp Congress's authority to create new categories of “nonmailable matter,” then, the Postal Service will impose mailpiece design and reporting standards to promote a rational and legitimate objective. As discussed below, to support this proposal, the Postal Service has reasonably determined that the mailpiece design requirements will help ensure proper handling, efficient processing, and timely delivery of such ballots to and from voters. See 90 FR at 9843 (special conditions are appropriate for “sensitive matter” where such conditions “will improve visibility and enhance handling methods”). Moreover, requiring the submission of a consolidated list of data concerning Federal Ballot Mail will assist law enforcement authorities in investigating crimes, including those involving the mails, as is consistent with the Postal Service's regulatory authorities. See 39 U.S.C. 401(b) (noting that the Postal Service can issue regulations to support functions assigned to it by law); 18 U.S.C. 3061(b) (authorizing Postal Service to investigate crimes “regarding the use of the mails” and other appropriate crimes as determined by agreement with the Attorney General).

The Postal Service has previously relied on its authority under 39 U.S.C. 401(2) to establish standards applicable to the acceptance and transmission of certain unique articles in furtherance of specific Postal Service operational interests where those articles raise special handling concerns, even where the articles are not dangerous. For example, cremated human and animal remains must be transported through specific types of USPS-provided boxes, and must be trackable via barcode. See Cremated Remains Packaging Requirements, 90 FR 9843 (Feb 19, 2025) (implementing rules concerning the sending of cremated remains in specific types of USPS-provided boxes because the Postal Service understands such remains are “sensitive matter and believes this will improve visibility and enhance handling methods throughout processing and transportation”). Similarly, replica explosives—which, although not dangerous, also require special handling to prevent operational disruptions—rather than being prohibited from the mail altogether must be mailed in certain ways, including in-person presentation to a retail counter and shipment via Registered Mail. Restricting the Mailing of Replica or Inert Explosives, 75 FR 282 (Jan. 5, 2010) (noting that “[t]his process will ensure that packages containing these items remain separate and easily identifiable during the mailing process”).

Although ballot mail does not present precisely the same operational issues as cremated remains or replica explosives, it is unquestionably sensitive mail that raises unique operational considerations, as discussed above, and the Postal Service's authority under Section 401(2) is sufficiently expansive to encompass mail-entry conditions that further the effective execution of federal law and advance operational best practices. 39 U.S.C. 401(2) (noting that the Postal Service can issue regulations to support functions assigned to it by law). And incidental to the ability to impose standards in furtherance of such legitimate objectives is the ability to restrict mailings that do not meet those conditions from being accepted. Cf. id. § 401(10) (Postal Service is granted “incidental” and “necessary” powers to effectuate its responsibilities).

Commenters also argued that the proposed rule is inconsistent with various title 39 provisions, i.e., 39 U.S.C. 101(a), 403(c), 404(e), and 412. Other commenters averred that, prior to implementing these provisions, the Postal Service must request an advisory opinion from the Postal Regulatory Commission (“PRC”) under 39 U.S.C. 3661(b).

The Postal Service disagrees with these assessments and addresses each of the above-cited title 39 provisions in turn.

Section 101(a) establishes the Postal Service's foundational legal mandate to bind the nation together by providing reliable, efficient, and regular mail services to all communities. This obligation coexists with federal laws determining what is mailable, and the Postal Service abides by several statutory and regulatory directives regarding items that are not mailable, such as hazardous substances or explosives, or (as here) mailable with conditions imposed on preparation and data reporting. The existence of these directives does not negate the foundational legal mandate, and neither would Federal Ballot Mail envelope design standards and electronic documentation requirements that align with preexisting guidance. Furthermore, the Postal Service will continue to coordinate with state election officials and other officials regarding the transmittal of election mail and will maintain its longstanding election mail practices concerning the processing and delivery of ballots that enter the mailstream, including completed ballots mailed by voters to election officials. Indeed, consistent implementation of longstanding best practices recommendations will enhance, rather than hinder, these efforts.

Section 403(c) mandates that, in providing services, “the Postal Service shall not . . . make any undue or unreasonable discrimination among users of the mails, nor shall it grant any undue or unreasonable preferences to any such user.” The PRC has noted that a violation of section 403(c) requires that (1) a user of the mail is receiving less favorable services than those provided to one or more other postal customers, (2) the user is similarly situated to those postal customers receiving more favorable service, and (3) there is no rational or legitimate basis for denying the user the more favorable service currently being provided to those similarly situated postal customers. PRC Order No. 718, Advisory Opinion (AO) on Service Changes Associated with First-Class Mail and Periodicals, July 20, 2021, Docket No. N2021-1 at 170.

The rule adopted herein sets forth neutral, uniform, and non-discriminatory mailpiece design and data reporting standards that apply uniformly to all Federal Ballot Mail; thus, no “preferential mail service” is granted to one class of mail-in voters over another. Nor does the Postal Service violate Section 403(c) by requiring that Federal Ballot Mail meet these uniform standards, since given the unique considerations raised by such mail, Federal Ballot Mail is not “similarly situated” to other types of mail. Indeed, the Postal Service already accords to election mail special operational treatment that is unavailable for other mail matter sent as First-Class Mail or Marketing Mail (the postal products typically used to send ballot mail), and there is no basis to conclude that this special operational treatment constitutes undue discrimination against any users of the mail. Finally, Section 403(c) does not prohibit all distinctions among mail users, but only preferences that are “undue” or “unreasonable.” Given the reasonable and legitimate objectives of the new standards, they are neither “undue” nor “unreasonable”—even assuming arguendo that users of Federal Ballot Mail are “similarly situated” to users of other mail classes not covered by those standards, and even if those standards were conceded to somehow provide “less favorable” terms (and they do not).

The Postal Service also notes an issue flagged by several commenters: namely, that not all states can implement the rule's requirements with the same facility. By way of example, one comment noted that states with universal mail-in voting can more readily implement the new electronic documentation requirements than can states that do not mail absentee ballots unless requested by the voter—since the states in the former category can submit their entire list of enrollees in one session through the ballot portal, while states in the latter category must submit names in a more piecemeal fashion and only for those individuals requesting to receive a ballot through the mail. The Postal Service acknowledges the existing variations in state mail-in voting practices, which may require different levels of process changes in order to comply with the rule; however, as noted, the rule itself sets forth neutral, uniform, and non-discriminatory mailpiece design and data reporting standards that apply equally to all Federal Ballot Mail. Compliance with these standards is straightforward and facilitated by existing resources (in some cases, free of charge). Furthermore, the nature and degree of states' prospective compliance efforts reflect the states' own policies, not the uniform standards adopted by the Postal Service. Such discrepancies, therefore, do not implicate Section 403(c).

Section 404(e) generally prohibits the Postal Service from providing any new “nonpostal service.” The term “service” is not defined in title 39; the statute directed the PRC to review the “nonpostal services” offered by the Postal Service as of January 1, 2006, to determine whether each such service may continue. Id. § 404(e)(1). In carrying out that responsibility, the PRC defined the term “service” by regulation as “any ongoing, commercial activity offered to the public for the purpose of financial gain.” PRC Order 154, Review of Nonpostal Services Under the Postal Accountability and Enhancement Act, Dec. 19, 2008, Docket No. MC2008-1 at 14. Because the creation and distribution of the Mail-in and Absentee Participation Lists are not “commercial” in nature, are not offered to the public, and are not offered “for the purpose of financial gain,” it would not qualify as a “service” for the purposes of Section 404(e).

In any event, the creation of such lists is “postal” in nature, as it would involve “delivery of letters, printed matter, or mailable packages, including acceptance, collection, sorting, transportation, or other functions ancillary thereto.” 39 U.S.C. 102(5); see also id. § 404(e)(1) (“the term `nonpostal service' means any service that is not a postal service defined under section 102(5)”). As noted above, these provisions set forth preparation and data standards that are tailored to the sending of ballots, and hence to the use of the mail.

Section 412 provides in part that “no officer or employee of the Postal Service shall make available to the public by any means or for any purpose any mailing or other list of names or addresses (past or present) of postal patrons or other persons.” Some commenters theorized that unless state law shields postal-provided state-specific Mail-In and Absentee Participation Lists from disclosure, furnishing the state's chief election official with a list containing the names and addresses of those receiving a mail-in ballot likely violates this section. However, 39 U.S.C. 412(a) addresses lists of “postal patrons” or “other persons” compiled from postal data, and provides that the Postal Service shall not make such a postal list available to the public. The information on which the Mail-In and Absentee Participation Lists will be based is provided by the states themselves, and specifically the states' records of individuals to whom they (or their authorized election officials) plan to mail blank ballots. Because the lists involve information furnished by the states, 39 U.S.C. 412(a) is not applicable; and in any event, the Postal Service will not make the lists public.

Certain commenters nevertheless argued that the exception structure created by Section 412(a) (allowing disclosure of information “as specifically provided by subsection (b) or other law”) in tandem with Section 412(b) (stating that “[t]he Postal service shall provide to the Secretary of Commerce for use by the Bureau of the Census such address information, address-related information, and point of postal delivery information . . . as may be determined by the Secretary to be appropriate for any census or survey”), impliedly excludes the provision of Mail-In and Absentee Participation Lists to state officials. It therefore bears emphasizing that even if Section 412(a) were applicable to Mail-In and Absentee Participation Lists, it would not bar the provision of such lists to state elections officials.

First and foremost, the provisions of these lists to state election officials does not constitute such disclosure of protected information “to the public.” (Emphasis added.) Indeed, at least one court has interpreted disclosure to state law enforcement officials under 39 U.S.C. 412 as not being tantamount to an impermissible disclosure to the public. See, e.g., People v. Pearson, 169 Cal. App. 3d 319, 323 (1985) (holding that an individual “had no reasonable expectation of privacy of his name and residential address given to the United States Postal Service when applying for a post office box”; noting that “the information was not made available to the public” under 39 U.S.C. 412 “but rather to a law enforcement officer conducting an official investigation”).

Second, Section 412(a) allows disclosure of information “as specifically provided by subsection (b) or other law.” (Emphasis added.) Postal Service regulations accordingly make clear that disclosure of information under Section 412 to the Secretary of Commerce for census-related purposes is not exclusive, countenancing such disclosure pursuant to certain contracts and interagency agreements, by written request and with the prior consent of the individuals, or as “otherwise expressly authorized by federal law” See 39 CFR 266.3(b)(3). As noted, the rule's Mail-In and Absentee Participation List disclosure provisions are adopted pursuant to 39 U.S.C. 401 and 404 with the aim of supporting the faithful execution of federal law, and disclosure would occur in accordance with an established SOR.

Third, federal legislation serves as both a precedent and a template for the sharing of information by the Postal Service with state election officials, in the context of voting. Specifically, the National Voter Registration Act of 1993 (“NVRA”) requires each state to manage a voter list maintenance program, and to make reasonable efforts to remove ineligible voters from voting rolls. 52 U.S.C. 20507(a)(4). The NVRA includes a safe harbor provision, whereby a state can comply with its obligation to have a voter list maintenance program if “change-of-address information supplied by the Postal Service through its licensees is used to identify registrants whose addresses may have changed.” 52 U.S.C. 20507(c)(1)(A). In 2018, the Supreme Court determined that it was “undisputedly lawful” for a state to utilize the Postal Service national change-of-address data for voter list maintenance purposes, as described in the NVRA. See Husted v. A. Philip Randolph Inst., 584 U.S. 756, 765 (2018) (citing 52 U.S.C. 20507(c)(1) and referring to the NVRA safe harbor as “the Postal Service option”). As a general matter, then, the Postal Service's sharing of information with government officials is not exclusively limited to providing information to the Secretary of Commerce under Section 412(b).

Section 3661(b) provides that, when the Postal Service “determines that there should be a change in the nature of postal services which will generally affect service on a nationwide or substantially nationwide basis,” it must request an advisory opinion from the PRC before implementing the change. Some commenters reasoned that a change touching Federal Ballot Mail is a nationwide change in postal services within the meaning of Section 3661—one requiring pre-filing conferences with affected stakeholders and a formal request filed with the PRC at least 90 days before implementation (39 CFR 3020.110-3020.112).

As an initial matter, 39 CFR 3020.110-3020.112 are regulations binding the PRC, not the Postal Service. It is therefore incorrect to suggest (as some commenters did) that the Postal Service's adoption of this proposed rule would violate its own regulations.

More importantly, the changes contemplated by the proposed rule do not trigger any obligations under Section 3661. As noted, the obligations attendant to Section 3661 arise in the event of “a change in the nature of postal services which will generally affect service on a nationwide or substantially nationwide basis.” Implementation of this rule does not constitute such a nationwide change in postal services. As the leading case on this issue explains, Section 3661 must be read within the context of the overall statutory scheme of title 39, which is designed to give the Postal Service “broad authority in postal management” to ensure that management is not “unjustly hampered in its efforts to administer the Department in a businesslike way.” Buchanan v. U.S. Postal Serv., 508 F.2d 259, 262-63 (5th Cir. 1975). Section 3661(b) therefore comes into play only in limited circumstances, if (1) there is a change that has a “meaningful impact on service,” (2) the change is “in the nature of postal service,” and (3) the change affects service “on a nationwide or substantially nationwide basis.” Id. “These three factors combine to demonstrate that Congress intended the safeguards of 3661 to apply only when changes of significance were contemplated.” Id. at 263.

As to the first Buchanan factor, a proposed change triggers the Section 3661 advisory opinion requirement when that change is “meaningful” rather than “minor” from a quantitative perspective. See Buchanan, 508 F.2d at 262. Alterations that have a minimal effect on the general class of postal users therefore do not fall within the scope of Section 3661. Id. Here, the rule's requirements apply only to Federal Ballot Mail—a subset of election mail—and only in connection with federal general, special, or runoff elections (and not state elections or primary elections). To put this in context, in 2020 the Postal Service delivered roughly 400 million pieces of mail per day, and election mail in the 2020 general election accounted for only a small fraction of a percentage (roughly 0.1%) of that total mail volume. The standards being imposed on this exceedingly small subset of overall mail volume do not constitute a change of sufficient scale and scope to implicate Section 3661, but will instead have only a de minimis effect on the nature of postal services available to ordinary Postal Service users.

Moreover, whether a proposed action constitutes a change in the “nature of postal services” within the meaning of Section 3661(b) “involves a qualitative examination of the manner in which postal services available to the users will be altered.” Buchanan, 508 F.2d at 263. In that regard, the PRC has held that “in determining whether an initiative involves a change in the nature of postal services `[i]t is the experience of the individual postal consumer, the recipient of the complex of services provided by the Postal Service and the intended beneficiary of the policies incorporated by § 3661, that must be assayed.' ” Pennsylvania v. DeJoy, 490 F. Supp. 3d 833, 885 (E.D. Pa. 2020). Here, the changes contemplated by this rule do not directly affect the provision of postal services; rather, they encompass preparation and documentation requirements that are within the control of the states and, if adhered to, will not disturb the acceptance, processing, transmission or delivery of Federal Ballot Mail. The rule contemplates no changes to how the Postal Service processes and delivers election mail. In other words, as long as the rule's conditions are met, Outbound Federal Ballot Mail will enter the mailstream as usual, will transit as usual to its intended destination, and will in the usual manner be delivered: no discernible difference in the nature of postal services will arise. Indeed, as explained more fully below, the Postal Service will work closely with Boards of Elections to facilitate that very outcome. And, once the Outbound Federal Ballot Mail reaches a voter, the voter will experience no change. Voters may complete and return their ballot as they do now. It further bears noting that even if a state declined to submit the information required by the rule, the resulting acceptance refusal would not implicate Section 3661 any more than would a large-scalemailer's decision to opt out of the mail system: the nationwide availability of postal services would remain unchanged.

Finally, some commenters argued that it was unlawful for the President to issue an Executive Order directing action by the Postmaster General. To be sure, Executive Order 14399 was relevant to the Postal Service's consideration of this subject and began the deliberative process that is now resulting in this rule. While the Executive Order did not mandate a final rule, the Postal Service has determined that, to help achieve the goals articulated by the Order as necessary to faithfully execute federal law and also to advance the Postal Service's operational interests, it is appropriate to exercise its statutory authority to promulgate these provisions. Considerations of Postal Service independence are not relevant to this rulemaking.

In a 2021 settlement with the NAACP, the Postal Service agreed to take certain actions regarding mail-in voting in future federal elections, including prioritizing monitoring and timely delivery of election mail through 2028. Some commenters argued that the enactment of new mail preparation and electronic documentation requirements, particularly immediately, would deprioritize the timely delivery of election mail and, thus, violate that settlement agreement. In doing so, some commenters pointed to a recent judgment by the U.S. District Court for the District of Columbia granting NAACP's motion to enforce the settlement agreement, and enjoining the proposed rule's implementation. See NAACP v. U.S. Postal Serv., No. 1:20-cv-2295 (D.D.C.).

On July 17, 2026, the U.S. Court of Appeals for the D.C. Circuit stayed the district court's injunction, concluding that “even if adopted, that proposed rule likely would not violate . . . the parties' settlement agreement.” NAACP v. U.S. Postal Serv., No. 26-5257 (D.C. Cir. July 17, 2026). As the government has explained in that litigation, implementation of this proposed rule is not inconsistent with the terms of the settlement agreement: nothing in the rule adopted herein deprioritizes the timely delivery of election mail. To the contrary, implementation of these standards will, in fact, facilitate the Postal Service's efforts to deliver Federal Ballot Mail in a timely manner. Furthermore, the Postal Service will continue to work closely with stakeholders, and will deploy an array of special operational procedures (including so-called “extraordinary measures”) to ensure the timely delivery of election mail, as it has done in prior election cycles.

Some commenters argued that NVRA (intended primarily to facilitate the registration of voters) and the Help America Vote Act (“HAVA”) (establishing a funding program to support state administration of elections) neither grant the President authority to identify the additional measures outlined in Executive Order 14399, nor authorize the Postal Service to adopt the rule as proposed. Commenters further argued that implementation of the proposed rule, and in particular the refusal to accept Outbound Federal Ballot Mail mailings that do not comply with the acceptance standards embodied in DMM 705.24, would violate the Voting Rights Act. As background, Congress enacted the Voting Rights Act to protect citizens' constitutional right to vote and to move freely across state lines, providing that no U.S. citizen shall “be denied the right to vote” in federal elections “because of the failure of such citizen to be physically present in such State or political subdivision at the time of such election,” so long as the citizen has “complied with the requirements prescribed by the law of such State or political subdivision” concerning absentee ballots. 52 U.S.C. 10502. The enforcement provisions of the Voting Rights Act, id. § 10307(a), further establish that “[n]o person acting under color of law shall fail or refuse to permit any person to vote who is entitled to vote under any provision of chapters 103 to 107 of this title or is otherwise qualified to vote[.]” In these commenters' view, the rule as proposed would violate these statutes by adding a new enrollment requirement as a necessary precondition to the delivery of absentee ballots. Other commenters argued that the Election Assistance Commission (“EAC”), not the Postal Service, is the federal entity tasked to act as a national clearinghouse and resource for the compilation of information with respect to administration of Federal elections; if the EAC cannot impose any requirement on any state or local unit of government, the Postal Service cannot do so through its proposed rule either.

As discussed above, under the rule, states retain full control over how to utilize the mail in their electoral systems, including by determining who is registered to vote and who is eligible to receive and send a mail-in ballot. The rule requires only that Federal Ballot Mail envelopes meet certain mail preparation requirements and that states provide mailpiece-level data regarding their Outbound and Return Federal Ballot mailings. As such, this rule simply regulates the use of the mail, and does not interfere with or supplant the schemes established under NVRA, HAVA, or the Voting Rights Act. The Postal Service's rule complements, rather than replaces, these statutory responsibilities by supporting the accurate distribution of ballots after states have determined who is eligible to receive them. Similarly, the Postal Service is not usurping the authority vested in the EAC. This rule concerns the mail, not election administration; voting systems and other election administration tasks remain squarely within EAC's scope. The Postal Service will continue (as before) to provide change of address information to state and local officials; and state and local officials will continue (as before) to maintain their official voter registration lists. Mail-In and Absentee Participation Lists will be based entirely on data in the possession of, and provided by, the states, and the Postal Service will not change the content of those lists. In this regard, it bears repeating that the Portal is not in any way a federal voting database; instead, it establishes a mechanism whereby states can provide data, which is fully within their possession and control, regarding Federal Ballot mailings.

Some commenters faulted the proposed rule for its alleged failure to address the obligations under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., which requires that federal agencies obtain approval from OMB before imposing a new information collection requirement on persons, including state governments.

The Postal Service notes that it is outside the Paperwork Reduction Act's scope. See Kuzma v. U.S. Postal Serv., 798 F.2d 29, 32 (2d Cir. 1986); Shane v. Buck, 658 F. Supp. 908, 915 (D. Utah 1985), aff'd, 817 F.2d 87 (10th Cir. 1987).

Some commenters took issue with the length of the notice and comment period, with some alleging that the time allotted for comments was insufficient under the APA, and others remarking that for a rule of such scope and consequence, a 60-day comment period would be more fitting and appropriate.

Although the Postal Service is part of the executive branch, it is not subject to many of the laws and guidance that govern the rulemaking processes used by other executive branch entities—including the APA (except in proceedings concerning mailability, which as explained above and in the Notice of Proposed Rulemaking, the instant proceeding is not). 39 U.S.C. 410(a), 3001(m). The Postal Service also notes that the Notice of Proposed Rulemaking prompted more than 200,000 comments covering a wide range of topics and opinions. There is thus no indication that the public had inadequate time to share its views, or that 30 additional days would have resulted in material additional comments. The Postal Service has considered and taken seriously all significant comments.

The proposed rule, and the final rule on which it is based, was designed to be flexible enough to accommodate the variation in state election laws and election administration practices. However, some commenters interpreted this flexibility as vague, expressing frustration about the lack of concrete compliance steps or confusion over the responsibilities of Authorized Ballot Mailers and Federal Ballot Mail Portal Users. Commenters also misconstrued the proposed rule's provisions as covering the most expansive scope of ballot mail possible while also operating in the most restrictive manner possible. This led to a substantial volume of comments that were premised on inaccurate factual assumptions, with the underlying basis for the expressed opposition being based, either in full or in part, on these inaccurate assumptions. These inaccuracies led to many exaggerated claims about the impact of the proposed rule as well as the Postal Service's role under the rule.

The Postal Service does not expressly recount each inaccuracy here, in an effort to avoid further confusion. Instead, to respond to the multitude of factual misunderstandings represented in the comments, and in an effort to supply additional details, the Postal Service offers the following explanation of how the final rule is intended to be implemented.

To begin, the Postal Service is continuing to accept and deliver ballot mail, including Federal Ballot Mail, from election officials and voters. The proposed rule does not end or prevent mail-in or absentee voting, contrary to the mistaken claims raised in comments. As explained above, the Postal Service is continuing to carry out its core statutory mission in a uniform, neutral, and nondiscriminatory manner. Nothing in this rule need prevent that outcome, as states will retain full control over who is (or is not) permitted to vote by mail in their jurisdiction.

The rule introduces new mailpiece preparation requirements and data reporting standards for Federal Ballot Mail that must be satisfied prior to presenting Outbound Federal Ballot Mail for acceptance into the mailstream. Thus, the final rule regulates Federal Ballot Mail, consistent with the Postal Service's core statutory function, not the franchise. Eligibility for mail-in and absentee voting will continue to be governed by state law; state and local election officials will still determine which individuals are eligible under these laws; and state and local election officials will determine whether completed ballots are eligible to be counted. To repeat, the Postal Service will not play any role in determining voter eligibility, maintaining voter rolls, or counting ballots. The Postal Service will not open ballot mail, including Federal Ballot Mail; will not know the contents of a ballot; will not know how an individual voted; and will not know an individual's political party affiliation.

However, as many commenters acknowledged, and consistent with the stated authority above, the Postal Service will generally not accept Outbound Federal Ballot mailings unless compliance with the rule's new standards has been verified, as further detailed below and in the final rule.

Section 705.24.2 of the rule creates an optional process through which a state's chief election official (including those representing DC and U.S. territories) may alert the Postal Service of the state's intent to allow mail-in or absentee ballots to be transmitted by the Postal Service. This notice may be given 90 days prior to a federal election. This provision does not require a response from the state official, and also does not require preparation of a list of individuals to whom a ballot will be mailed or coordination with local officials (although the state official may choose to do so).

Some commenters misunderstood the purpose of this optional notice. For instance, one comment from a former election official stated that the Postal Service is already well aware of whether a state intends to use its services. The purpose of this provision, however, is to facilitate pre-election planning, as some commenters accurately recognized. When the Postal Service knows that a state plans to send ballots for a federal election using the mail, it can conduct outreach on mail preparation, provide resources related to IMbs, and offer guidance on how to access and use the Federal Ballot Mail Portal. While the process to enroll in the Portal is straightforward, beginning this process sooner—as the 90-day notice would allow—will be logistically beneficial.

Alternatively, the chief state election official can provide no notice at all. This does not preclude the state from using the Postal Service to transmit mail-in and absentee ballots for federal elections. Ballots for federal elections may still be sent through the mail so long as the chief state election official, and any other Federal Ballot Mail Portal User, creates a Portal account, satisfies the rule's mail preparation requirements, enters the required information into the Portal, and successfully completes verification prior to their Outbound Federal Ballot Mail being accepting for mailing.

The chief state election official may also provide notice that they do not intend to transmit ballots using the mail or that they do not intend to use the Portal. This also provides the Postal Service with valuable information to plan its resources and may inform internal training.

It should also be emphasized that these notices are not binding. For example, if the chief state election official initially informs the Postal Service that they do not intend to use the Portal, they may later change their mind and send ballots using the mail by following the steps outlined above.

The rule makes several of the Postal Service's longstanding mailpiece design preparation recommendations required elements for Federal Ballot Mail. As many commenters recognized, these elements—the Official Election Mail logo, automation-compatible envelope design, uniquely serialized IMbs on outbound and return envelopes, and mailpiece design review—are not novel. Each of these design elements is already recommended in the Postal Service's Official Election Mail Guide (“Kit 600”) and included as a best practice in DMM 703.8.0. Some jurisdictions have, on their own initiative, already opted to implement these recommendations to varying degrees. However, nothing in the rule prevents or discourages election officials from including envelope design elements required by state law, such as printed affidavits. Nor does anything in the rule prevent states from complying with accessibility laws or including unique envelope design elements intended to accommodate voters covered by these laws. The rule will not create a single, uniform ballot envelope design across all states; variation will remain. Rather, as one commenter explained, what the rule adds is uniformity: it makes these proven measures a consistent baseline for every jurisdiction that mails federal ballots, closing the patchwork that today inhibits mailpiece visibility and can make it more difficult to process and deliver ballot mail.

The rule's design requirements help to ensure timely processing and delivery of Federal Ballot Mail. As explained in the proposed rule and as echoed by many commenters, envelopes built for automation move through processing with less manual intervention and fewer chances for error. A consistent, recognizable election mail logo helps postal employees distinguish ballot mail from other mailpieces and facilitates proper handling, in accordance with existing Postal Service policy. And unique IMb data helps facilitate the tracking of individual pieces of Federal Ballot Mail to and from individual voters as the barcodes are scanned on the Postal Service's mail processing equipment.

Some commenters, including election officials and election-related organizations, appeared confused about how to generate IMbs. Unique IMbs can be generated for any type of address, including P.O. Boxes and nontraditional addresses. Generating and printing unique IMbs does not require specialized equipment or expensive software. It can be done by election officials of any level of technical sophistication, including those jurisdictions that manually print and stuff their own ballot envelopes, using free tools and common office equipment.

The Postal Service offers a number of tools and resources to make generating unique IMbs simple, quick, and cost-effective. For example, the Postal Service's Intelligent Mail for Small Business Tool (“IMsb Tool”) is a free (voluntary) online tool specifically designed for small-volume mailers that do not use Business Reply Mail, allowing such mailers to generate unique IMbs for printing on address labels or envelopes. The IMsb Tool is a web-based program that does not require any software or downloads. It allows small mailers to create mailings and documentation without making the investment of engaging software providers. Customers can upload their mailing list into the Tool to create and print address labels, envelopes, inserts or card stock and also generate the associated postage statements. The printing can be done from a regular printer. Some in the election community have printed the IMbs themselves using this tool for several years. More information about getting started in the IMsb Tool is available on PostalPro: https://postalpro.usps.com/node/2266.

The Postal Service also anticipates making modifications to the IMsb Tool to further enhance its functionality for Federal Ballot Mail. For instance, the Tool will be able to create lists for Portal submissions that contain a file with the name, address, and unique outbound and return IMb of individuals on the election official's mailing list. This file can be uploaded directly to the Portal by Federal Ballot Mail Portal Users. Another change for Federal Ballot Mail in the IMsb Tool will allow election officials to generate a unique IMb even where the address cannot be verified using Delivery Point Verification (“DPV”). Although DPV helps to identify issues that may hinder delivery, this modification will reduce the chance of an administrative or technical issue that could prevent an election official from generating a unique IMb.

Alternatively, if an election official prefers to work with a vendor, as many do, the Postal Service provides a list of certified vendors and Mail Service Providers (“MSPs”) at https://postalpro.usps.com/certifiedmsps/. It is a basic function of MSPs to print mailings with unique IMbs. To the extent they arise, printing issues, including jams, are surmountable and do not prevent proper implementation of the rule.

The Postal Service's Managers of Customer Relations (“MCRs”) are also available to provide guidance and support on mailpiece design as election officials work to comply with the rule. MCRs serve as dedicated points of contact for each election jurisdiction, including territories. They regularly educate election officials on the benefits of using unique IMbs and can direct election officials to available postal resources to help them get started. Election officials can contact their local MCR directly or by following this link: https://electionmail.usps.com/s/contact-local-mcr. Election Officials can also contact the Mailing & Shipping Solutions Center (“MSSC”) for support regarding IMbs by email at MSSC@usps.gov or by phone at 1-877-672-0007 (Monday-Friday, 7:00 a.m. to 7:00 p.m. CT).

Once election officials or their vendors have designed the Outbound and Return Federal Ballot Mail envelope to include the required elements, as set forth in DMM 705.24.3, the mailpiece must be submitted to the Postal Service for review by one of its MDAs. The envelope design must be reviewed each election cycle. If a state uses a single design, each political subdivision thereof does not need to separately submit the envelope for review. Mailpieces do not need to be reviewed prior to each separate mailing.

The mailpiece design review referenced in 705.24.3 is the existing MDA review process that many in the election community already utilize. MDAs are specially trained postal employees who can answer questions about mailpiece design, including IMbs and automation compatibility. Consulting with Postal Service MDAs will help ensure election officials have a well-designed Federal Ballot Mail envelope that is compatible with Postal Service guidelines and regulations, including the provisions of this rule. Although MDAs are already trained to assess the design elements included in this rule, the Postal Service will provide supplemental training to MDAs on Federal Ballot Mail and will offer additional resources as necessary to ensure customers receive consistent, accurate advice.

The rule does not change the process for submitting a mailpiece for review, receiving feedback, or contesting an MDA's advice. Customers can receive assistance from an MDA by submitting a design review request to MDA@usps.gov, through the Postal Service's Election Mail website at https://electionmail.usps.com/s/election-mail-review, or by calling 877-672-0007 (select option 3 for mailpiece design) (Monday-Friday, 7:00 a.m. to 7:00 p.m. CT).

MDA review is generally a quick process. MDAs typically aim to provide feedback to mailers within 2 business days after receiving the mailer's request and necessary information and samples.

More information about the MDA review process is available in Kit 600 or at https://postalpro.usps.com/node/773.

Under 705.24.4, Federal Ballot Mail Portal Users, including state and local election officials and other authorized users, such as MSPs, must submit certain data into the Federal Ballot Mail Portal prior to presenting an Outbound Federal Ballot mailing for acceptance. Chief state election officials are not required to enter this data themselves or to consolidate data for all political subdivisions within their state before data can be entered into the Portal. The chief state election official of each state does, however, authorize access for other Federal Ballot Mail Portal Users within their state. The rule also allows other individuals to enter information into the Portal if authorized, such as staff members, MSPs, or other vendors, thereby minimizing any potential administrative burden on election officials.

The Postal Service recognizes that many states have decentralized election administration. It is important that the state, through the chief state election official, maintain ultimate control over access to the Portal because they will have more visibility into their own election structures than will the Postal Service.

Voters themselves will not enroll with the Postal Service, and are not responsible for verifying Portal information or correcting information provided by Federal Ballot Mail Portal Users. In part, this is because voters do not design ballot mail envelopes and, consequently, do not have the relevant data elements for the Portal. Instead, that responsibility lies exclusively with election officials and their authorized MSPs.

Once Federal Ballot Mail Portal Users have set up a Portal account, they will be prompted to certify that their Outbound and Return Federal Ballot Mail envelopes have been submitted for MDA review and that they have received feedback. Federal Ballot Mail Portal Users will not be able to upload any data into the Portal until the certification is complete. This will ensure compliance with DMM 705.24.3.1 and 705.24.3.2 and reduces the information that is verified prior to acceptance of an Outbound Federal Ballot mailing. Business Mail Entry Unit (“BMEU”) technicians and Retail clerks will not perform a separate review of this information.

After completing the certification, Federal Ballot Mail Portal Users must provide: the name and address of the voter as found on Outbound Federal Ballot Mail envelope; the issuing state; and the IMbs on the Outbound and Return Federal Ballot Mail envelopes. This information must be uploaded to the Portal prior to presenting Outbound Federal Ballot Mail for acceptance. These data help to ensure that the rule's preparation standards have been satisfied, can provide valuable insight to election officials and law enforcement, and facilitate the verification process. This type of information is regularly collected by the Postal Service, including on mailing manifests. No other voter information, such as birthdate, social security number, or other voter registration details, will be uploaded to the Portal. As described further below, the Postal Service is developing this Portal with appropriate cybersecurity and privacy safeguards to protect Portal data, consistent with applicable law.

The required information can be uploaded into the Portal using an Excel template specifically formatted for Portal submission. Uploading and generating the necessary information is similar to submitting a manifest for bulk mailings, which larger election offices and their MSPs routinely complete. For smaller jurisdictions, the (free and optional) IMsb Tool can be used to generate a file that can be uploaded directly into the Portal. This will help minimize any data entry burden. The Postal Service does not anticipate that providing Portal data should require any change to statewide systems or databases. States must necessarily already maintain lists or databases with the relevant name and address information, otherwise it would never have been possible to mail those ballots in the first place. These systems are intended to remain separate, and do not need to be interconnected with the Portal. One commenter mentioned that states may wish to update their databases to include IMb data. States are free to undertake such actions, but it is not required by the rule.

Under the proposed rule, there is a flexible timeline for uploading data into the Portal. Initial mailing lists should be entered into the Portal at least 30 days before the election, if possible, or by the date on which ballots must begin being mailed under state law. This 30-day timeline, retained without modification in the final rule, is not a rigid deadline for completing Portal data entry. Although Executive Order 14399 contemplated a proposal in which states would submit such lists “no fewer than 60 days before the election,” the flexible 30-day timeline accommodates variations in state law.

The Postal Service does not expect these initial lists to be complete or final. States may continue to add, amend, or remove data from the Portal to account for new voters, new mail-in or absentee ballot requests, replacement ballots, addressing administrative errors, and other changes consistent with their state's law. These changes can be made as a new separate entry or by updating prior entries. This flexibility is intended to facilitate—not constrain—voters' ability to access mail-in or absentee voting as permitted by their own state's voting law, none of which are altered by this rule.

Federal Ballot Mail Portal Users can update the information submitted through the Portal as frequently as needed, consistent with state law. This process is designed to be flexible to account for variation in state law. For example, as one commenter explained, California Elections Code Section 3000.5(a) dictates when county election officials are to mail ballots to registered voters. Section 3005.5(a) provides, in part: “for each election, the elections official shall, no later than 29 days before the day of the election, begin mailing the materials specified in Section 3010 to every registered voter. The elections official shall have five days to mail a ballot to each person who is registered to vote on the 29th day before the day of the election and five days to mail a ballot to each person who is subsequently registered to vote.” Under California law, a voter may also register as late as 15 days before an election and will subsequently be sent a ballot via mail. Even after the 15th day before an election, voters may request a replacement mail ballot upon request to their county election official. This state statutory scheme is consistent with the rule. California election officials could submit initial mailing lists into the Portal 30 days (or sooner) before the election and present Outbound Federal Mailings for acceptance “no later than 29 days before the day of the election,” consistent with state law. California election officials may continue to add Portal entries for Outbound Federal Ballot Mail destined for voters who register after that time and until the 15th day before the election, and even after the 15th day before the election may continue to make supplemental entries for any replacement requests.

The ability to add and amend lists also allows Authorized Ballot Mailers to enter Outbound Federal Ballot Mail in batches, consistent with the current practice for many in the election community. Federal Ballot Mail Portal Users may continue to supplement the Portal data as permitted by state law, potentially up until Election Day. The only constraint imposed by the rule in this regard is that the information for a particular mailing must be uploaded into the Portal prior to the Outbound Federal Ballot mailing being presented to the Postal Service for acceptance. Thus, the Portal and verification process accommodate election officials who (for example) may do one large mailing and multiple smaller mailings. It also accommodates election officials who prepare many ballots for mailing at once but enter them into the mailstream in multiple installments.

Portal data will be updated as soon as it is submitted by the Federal Ballot Mail Portal User, and there should be minimal to no delay between Portal upload and a mailer's ability to present the mailing for acceptance. Portal data will also be available for verification purposes on a nationwide basis. If an Outbound Federal Ballot mailing is presented for acceptance outside of the issuing state, Postal Service employees would still have access to the necessary Portal data to perform verification under DMM 705.24.5.

Within the Portal, the Postal Service plans to confirm that the required data fields are completed ( i.e., they may not be left blank) prior to Outbound Federal Ballot mailings being presented for acceptance. This includes verifying the unique IMb on Return Federal Ballot Mail has been uploaded into the Portal. Aside from confirming that the required data has been uploaded, however, the Postal Service will not otherwise verify, correct, or amend any data entered into the Portal. It will not determine whether an individual's name is accurate; so, for example, married women changing their names or potential mismatches for misspellings will not prevent a ballot from reaching a voter under the rule. Likewise, the Postal Service will not assess the accuracy of the address entered, such as to determine whether there is a Change of Address or whether the address is otherwise invalid. Moreover, the address uploaded into the Portal should be the address used on the Outbound Federal Ballot Mail envelope. Nontraditional addresses, such as tribal addresses, college dormitories, and long-term care facilities, can and should be entered into the Portal if that is the address on the Outbound Federal Ballot envelope. Voters who may move often, like students, the homeless, the elderly, renters, or people whose mailing addresses do not match identically with government records, should not experience delivery issues under the rule so long as their state or local election official has their current mailing address.

The Postal Service will not be comparing any data entered into the Portal against state voter rolls as part of the verification process or otherwise. This means that state election officials will maintain full control over managing their own voter rolls and determining voter eligibility without any interference or involvement from the Postal Service.

All data or changes submitted by Federal Ballot Mail Portal Users will be accepted. The possibility that the Portal may, therefore, be overinclusive does not undermine the purposes of the rule as the State Mail-In and Absentee Participation List, which compiles all Portal data for a state and is not intended to serve as a replacement for official voter rolls.

Finally, shortly after the effective date of the final rule, the Postal Service will make additional guidance documents available, including a User Guide for the Portal and Technical Specifications for the Portal. These resources will explain how to create a Portal account, how to assign and approve Federal Ballot Mail Portal Users, the file format for Portal uploads, and how to resolve errors and make new submissions; these documents will be available in accessible formats. The Postal Service has an established process for communicating new or updated technical requirements that it will deploy to inform election officials, MSPs, and others in the mailing community about the Portal and these resources. This process includes familiar communications channels, including Industry Alerts and Mailers Technical Advisory Committee User Group notifications, which help to ensure that the information reaches the appropriate audience. MCRs are also available to assist individual customers by email and phone. The Postal Service will also directly engage with election officials, MSPs, and other stakeholders to answer questions and provide guidance related to implementation of the rule.

When preparing Outbound Federal Ballot mailings, Authorized Ballot Mailers must segregate Outbound Federal Ballot Mail from other types of ballot mail, such as primary ballots, UOCAVA ballots, or ballots for state or local elections only. Comingling non-federal ballot mail with Outbound Federal Ballot Mail may impact the verification process and could prevent or delay proper acceptance of mailings. For ballots that have both federal and state issues on the ballot, the mailing will be treated as Outbound Federal Ballot Mail and will be subject to the rule. At entry, mailers should inform the BMEU technician or Retail clerk if a ballot mailing contains non-federal ballots. Timing differences (between primaries and general elections or between federal and state elections) and external indicia may also help alert postal employees to the presence of non-Federal Ballot Mail.

The Postal Service is also working on establishing Federal Election Mail and Non-Federal Election Mail Service Type Identifiers (“STIDs”). Specifically, the Postal Service is planning to convert the current Election Mail STIDs to Federal Election Mail STIDs. New STIDs will be developed for non-Federal elections. This approach will assist jurisdictions that may have already finalized the printing process for their 2026 general election envelopes relying on the existing STID table, and will support their ability to comply with the final rule. Having unique STIDs for Federal and non-Federal elections will help to further distinguish Federal Ballot Mail from other ballot mail. Prior to finalizing and releasing the new STIDs, the Postal Service will publish a notice in the Federal Register .

As stated in the proposed rule, Outbound Federal Ballot mailings must be entered at a Post Office retail counter, including manual post offices, or a BMEU. A locator tool for Postal Service locations is available here: https://tools.usps.com/locations/. These mailings may not be entered into blue collection boxes, collection boxes in retail lobbies, or through other means. While the rule makes this restriction mandatory, it is also consistent with the Postal Service's general guidance for outbound ballot mailings. Commercial mailings must meet applicable DMM requirements. Mailings paid at single-piece First Class Mail rates are not required to meet commercial mailing standards.

Verification under 705.24.5 will be performed at a BMEU or Post Office retail counter when an Outbound Federal Ballot mailing is presented for acceptance. Conducting verification prior to acceptance is intended to obviate confusion and provide a clear, immediate identification of potential issues. Either a BMEU technician, if the mailing is presented at a BMEU, or Retail clerk, if the mailing is presented at a Post Office or other Postal Service retail location, will perform the verification. Both BMEU technicians and Retail clerks will receive training on this process.

The verification process is straightforward. The Outbound Federal Ballot mailings will be verified using the IMb on the outside of the Outbound Federal Ballot Mail envelope. Relying on existing scanning technology and devices, the Postal Service will confirm the presence of scanned barcodes in the Federal Ballot Mail Portal. Portal data will be available for verification purposes on a nationwide basis. Therefore, if a state uses an MSP located in a state different than the issuing state of the ballot, the Postal Service will still be able to conduct verification.

This process can be completed promptly. Scanning a barcode generally takes less than a minute per mailpiece. Depending on how many barcodes are scanned, the verification process should take no more than a few hours for larger mailings, and potentially only a few minutes for smaller mailings. Authorized Ballot Mailers should remain at the BMEU or postal retail location during the verification process.

If the Outbound Federal Ballot mailing meets the verification standards, it will be accepted by the Postal Service. No further action is needed by election officials or voters under the rule.

Authorized Ballot Mailers will be informed of the escalation procedures should they decide to challenge a rejection; relevant Postal Service employees will also receive training about these procedures. The ability to cure rests not with the voter, as the franchise itself is not impacted, but with the officials responsible for preparing the envelope and entering Portal data. This approach is consistent with how election mail works now, where election officials and mailers are responsible for preparing the ballot mail, addressing the mailpieces properly, ensuring that they are going to the proper individual, and correcting any error that may occur or prevent delivery to the intended recipient. Thus, the Postal Service will continue to resolve issues consistent with our current approach, rather than creating a new “appeal” process for voters, as many commenters urged, that would impose a direct burden on voters and increase the risk of confusion and concern.

Once Outbound Federal Ballot Mail is accepted by the Postal Service, it will enter and move through the mailstream as it has in prior elections. It will not be intercepted, returned, or delayed due to the rule.

The verification process does not entail scrutiny into, or any attempt to evaluate, individual voters. The Postal Service is not verifying addresses, names, voter eligibility, or citizenship status as part of this verification process. As noted above, Portal data will be regularly refreshed to minimize the risk that the verification process incorrectly flags, delays, or disrupts lawful federal ballot materials.

Verification under DMM 705.24.5 is done only for Outbound Federal Ballot mailings. If a voter chooses to return their completed ballot by mail, they should use the Federal Return Ballot Mail envelope provided by their state; and they may continue to mail from a residential mailbox, a blue collection box, or any retail counter. Once the Federal Return Ballot Mail enters the mailstream, it will be processed and delivered consistently with current operational practices. This includes generating scan data from the unique IMb on the outer return envelope when the mailpiece is processed on the Postal Service's automated equipment subject to certain limitations, including extraordinary measures that may remove ballots from normal operational processes to expedite delivery.

The Postal Service also wishes to clarify two provisions of the proposed rule, which are adopted without change in the final rule. First, the Postal Service would like to clarify the meaning of Section 705.24.5.2, which provides in part that “[t]he Postal Service's acceptance of Outbound Federal Ballot Mail does not constitute verified compliance.” This provision was included in recognition of the fact that, despite the Postal Service's best efforts, some Outbound Federal Mail may enter the mailstream that does not meet the preparation or data standards set forth in the rule. For that reason, DMM 705.24.5.2 is intended to acknowledge that acceptance (and ultimately delivery) of an outbound federal ballot does not, in and of itself, evidence compliance with the rule's provisions.

Second, commenters expressed concern over 705.24.5.3.d, which states that “[t]he Postal Service assumes no responsibility for any outbound ballot mailing presented until it is accepted into the mail. The Postal Service is not responsible for service delays when the Ballot Portal User or Authorized Ballot Mailer does not meet the applicable preparation or entry standards.” The Postal Service notes that comparable statements appear throughout the DMM, and that the provision reflects the longstanding principle that the Postal Service is not responsible for a mailing until the mailing is in its custody—that is, until it has been accepted. For example, DMM 608.11.3 (Postmarks and Postal Possession) describes the point at which the “Postal Service accept[s] custody of a mailpiece,” and the Plant-Verified Drop Shipment provisions of DMM 705 provide that such shipments “are freight until deposited and accepted as mail at the destination facility.” The specific language in 705.24.5.3.d is similar to a provision discussing the effects on service for Metered Mail Drop Shipments, which also must satisfy specific preparation conditions to be accepted for mailing. DMM 705.19.1. That provision states: “The USPS assumes no responsibility for the material presented until it is accepted into the mail. The USPS is not responsible for service delays when the mailer does not meet the applicable preparation or entry requirements.” This language is included in the rule to ensure that mailers know that they must remain in control of an Outbound Federal Ballot mailing until it has been accepted by the Postal Service.

On or about Election Day, the Postal Service will generate a state-specific Mail-In and Absentee Participation List, which compiles all Federal Ballot Mail Portal entries submitted for the originating state. This list will be securely transmitted to the chief election official of each state. The Postal Service will not disclose the Lists to the public. The List is in effect a manifest, and is primarily intended to assist election officials and law enforcement to understand who may have been mailed a ballot, in order to identify potentially anomalous incidents that may merit further investigation. Providing the list on or after Election Day is consistent with this purpose.

To be clear, the state-specific Lists are not intended to substitute for or supplant state voter rolls. It simply offers another data point at the chief state election official's disposal based on their own Portal data. The chief state election official is free to choose whether and how to use the state-specific list. Those decisions are not dictated by the Postal Service or this rule. States have sole responsibility for ensuring the accuracy of their voter rolls and counting ballots as permitted under state law.

The Portal data is the sole data source used to generate the Lists. These data are provided directly by election officials (and other Federal Ballot Mail Portal Users) based on the mailings they actually made or planned to make. The List will not be based on external sources of information, such as federal databases made available by the Department of Homeland Security or the Social Security Administration. Nor will the Postal Service compare Portal data to any other internal or external source ( e.g., National Change of Address data, federal data lists), filter the information, or otherwise alter the Portal data on its own when compiling the state-specific List. The Lists will also not contain any scan data. As one commenter correctly stated, the rule “require[s] USPS to provide the state with the List that contained the same information that the state provided to USPS.”

In light of the above, some commenters questioned the purpose of the Lists. Other commenters recognized that the value of the List lies in the creation of reconcilable data that offer a neutral administrative check that strengthens confidence in elections. These commenters argued that credible post-election audits can rise or fall on the quality of the underlying data. The state-specific List would meaningfully sharpen that data by providing significantly enhanced visibility regarding the sending of mail-in ballots, as it will provide federal law enforcement with a list of individuals to whom states planned to mail a ballot (and who may potentially use the mail to vote), along with the associated barcode data, which the Postal Service understands will help to facilitate enforcement of federal law. Currently, law enforcement lacks such information regarding the use of the mail. The List is not intended to substitute for official election records or state mandated reconciliation procedures. In assessing the List for areas of potential further investigation, it should also be noted that some variation may exist between the List and the (separate) scan data for a variety of reasons, for example not all voters who receive a mail-in ballot will return it by mail, and as noted above the Portal data may be over-inclusive. The benefits of the rule are still achieved notwithstanding these variations.

Consistent with the operation of the rule set forth above, the Postal Service also clarifies the impact of the rule on voters and election officials, particularly as weighed against the rule's purpose and benefits. As provided by the comments, this section discusses commenters' claims regarding the benefits and burdens of the rule, and how the Postal Service is striking an appropriate balance in the final rule.

Those commenters who supported the rule believed that the benefits to the rule are aligned with the rule's intended purpose and that the rule's policy goals are properly weighed against the potential burdens, harms, and costs. They urged the Postal Service to swiftly adopt the proposed rule, so that all federal elections could benefit from its stated improvements, including mailpiece visibility and the enforcement of federal law.

As an initial matter, these comments acknowledged that mail ballots play an important role for many voters, but also had concerns related to voter fraud. These commenters noted that even the possibility that elections are taking place in an unsecure manner due to lack of necessary visibility can undermine public confidence in the electoral process, even if no fraud is ultimately discovered. These commenters asserted that given the prevalence of mail-in voting, it would be both appropriate and beneficial for the government entity tasked with delivering ballots to and from the voter and the election office to put safeguards in place. Many of these commenters argued that by making the mailstream more reliable and more transparent on a nationwide basis, the rule would provide states with a means to combat potential voter fraud in ways they could not do acting alone. Commenters note that this would strengthen public confidence in the election system without altering any state election laws, voter registration, or eligibility requirements; or changing how ballots are issued, collected, or counted. As one comment explained: public confidence in elections is best sustained by procedures that can be verified, documented, and consistently applied.

Moreover, these commenters recognized that the rule offers efficiency and security benefits for voters and election officials, and promotes secure elections that the public can be confident in. Commenters note that a set of minimum envelope-design standards would help election officials, the Postal Service, and the public better account for Federal Ballot Mail moving through the mailstream. As several commenters explained, a ballot that can be tracked is far harder to misplace, stall, or counterfeit. Improved tracking may also help identify discrepancies between ballots mailed and ballots received, some commenters added, making it easier to detect and deter potential fraud or irregularities while protecting the integrity of mail-in voting. Even parties opposing the rule recognized that unique IMbs can provide unmatched visibility into the mailpiece's progress in the mailstream. Commenters also reiterated the importance of the Official Election Mail logo as a means for voters to recognize election mail as important and distinct from other mailings and to help Postal Service employees identify official election mail among the millions of mailpieces processed daily. Commenters further explained that advance review of ballot envelope designs would reduce operational errors, delays, and delivery issues that have sometimes affected voters and delayed delivery of their ballots. As examples, commenters pointed out that non-automation compatible ballot mail is more likely to encounter avoidable processing complications or delays, and other mailpiece design defects could prevent barcodes from being read or increase the need for manual handling. Commenters concluded that requiring design review before ballot envelopes are printed and mailed is a low-cost, high-value step that can prevent serious problems during the compressed period before an election.

Furthermore, these commenters state that the rule's other preparation and data entry requirements, particularly those involving the Portal, would support stronger coordination between state election officials and the Postal Service. For example, the rule would improve pre-election planning by allowing states to notify the Postal Service before using the postal system for ballot delivery. States would still retain full control over who receives a ballot, and the Postal Service would have better information to plan resources. Many election officials who submitted comments, including those who opposed the rule, expressed appreciation for the Postal Service's ongoing efforts to support election officials. The rule, some commenters noted, provides another avenue to strengthen those relationships. Many commenters concluded that by improving coordination between election officials and the Postal Service, the proposed rule has the potential to reduce undeliverable election mail, strengthen ballot accountability, and reinforce public confidence that election mail is being sent to the correct recipients.

These commenters further contend that applying reasonable verification procedures to federal election ballots is consistent with the Postal Service's longstanding mission of delivering mail accurately, securely, and reliably. Commenters noted that verification, as contemplated in the rule, does not alter the states' authority to determine voter eligibility or administer elections. Rather, it provides an additional administrative safeguard to help ensure that ballots approved by election officials are delivered accurately to the intended recipient. Commenters opposing and supporting the rule noted the extensive efforts election officials undertake to maintain accurate voter rolls. Those in favor of the proposed rule argue that rather than duplicating, undermining, or usurping these efforts, the rule strengthens ballot distribution procedures as a logical complement to states' election administration responsibilities.

Ultimately, these commenters reasoned that while the rule would place some administrative burdens on states, as they take advantage of the new Portal registration, barcode generation, and list submission provisions, these burdens are plainly justified by the rule's security and accountability benefits. Overall, in their view, the rule's standards would improve accountability without displacing the role of states in deciding who is eligible to vote or how elections are administered. The operational improvements that the rule mandates would benefit voters of every political affiliation because they promote accuracy, efficiency, and transparency in the administration of federal elections. These commenters explained that public confidence in elections is strengthened when every stage of ballot distribution is transparent. They also opined that the rule would help facilitate the appropriate direction of resources to law enforcement efforts.

Separate from arguments, discussed above, about the legal authority for the rule, numerous commenters opposing the rule also criticized it for purportedly failing to account for the potential burdens and other alleged harms it would impose on voters and election officials, not addressing associated reliance interests, and not adequately demonstrating a connection between the proposed rule's provisions and its stated goal. These commenters asserted that a rule of this nature should be based on detailed study, should be gradually rolled out, and should move forward only after election officials and the Postal Service are fully prepared for implementation. In particular, these commenters argued that a rule of this nature should not be issued roughly three months before an election. These commenters contended that the Postal Service should not finalize this rule without a reasoned explanation, a full implementation analysis, and an assessment of foreseeable civil rights impacts. Commenters strongly urged the Postal Service not to finalize it.

Those opposed to the rule expressed concern about the possibility of disenfranchisement. They contended that voters may be omitted from the Portal with no recourse, that an administrative or technical error may result in an otherwise lawful ballot being rejected by the Postal Service, or that voters may not receive a ballot at all if their state government chooses not to provide data in the Portal. Any of these scenarios, commenters argued, could result in voters having their mail-in or absentee ballots withheld or delayed, without any recourse or viable alternative to cast a ballot. Commenters asserted that some voters may be especially impacted should their ability to vote by mail be altered in any way, including those who are disabled, are elderly, have limited English proficiency, live in rural-dwelling, or are financially distressed. According to commenters, voters would bear the practical consequence of any delivery delay, even if the delay was caused by an administrative process outside the voter's control. Commenters asserted that the rule would discourage individuals from voting by mail. Other commenters argued that any policy that could result in the delay, rejection, segregation, or differential treatment of mail ballots raises concerns regarding voter access, election administration, and public confidence in the democratic process.

Commenters also discussed the risks of confusion that the rule would purportedly create, particularly because voters may not know if their state has complied with or will be able to comply with the rule. These commenters claimed that the potential for voter confusion due to the rule is a harm in and of itself.

Others expressed concerns for their privacy and did not want voter information included in a Portal run by the federal government or their identity linked to uniquely serialized IMbs on Outbound and Return Federal Ballot Mail envelopes.

Among the most frequently raised concerns from commenters opposing the rule was the purported burden imposed on election officials, specifically if the rule were implemented immediately. Commenters, particularly election officials, secretaries of state, governmental officials, and voting organizations, stated that it would be difficult if not impossible to implement the rule in time for the 2026 general election. Election officials asserted that their preparations for the 2026 election are already underway and that they lack the time, funding, and staff to implement the proposed rule. Some commenters asserted that they have already purchased envelopes for the 2026 election cycle, and that generating unique barcodes for both outbound and return ballot mailings in some cases would require significant changes to their ballot envelope design, as well as procurement of those redesigned envelopes on an expedited timeline, which they assert would not be possible. Other commenters explained that in some cases, legislative action, Attorney General guidance, or state board approval are needed before such changes could be made. Some commenters posited that smaller and more rural counties with limited technology would be disproportionately affected, while others thought complying with the rule would be more onerous for election officials in states that have universal mail-in voting compared to states that do not mail absentee ballots unless requested by the voter.

Commenters also argued that the rule would impose new and recurring costs and administrative burdens for future elections cycles that do not currently exist. In this regard, commenters note that election systems are designed around state law, existing technology systems, vendor contracts, staffing structures, election calendars, and operational procedures that have been developed over time, and introducing new reporting, certification, and verification processes for Federal Ballot Mail would, in their view, require significant modifications to existing workflows and systems. Having previously relied on current procedures in structuring their budgets, staffing, and election timelines, commenters note that states would have to absorb any new costs, which those plans never contemplated.

Complying with the mail preparation and data-reporting standards, commenters asserted, would require them to divert resources away from processing voter registration applications and mail-in or absentee ballot applications, and in some instances the staffing necessary to implement the proposed rule may not be available at all. Election officials also asserted that there will be additional costs for direct voter contact, and other voter education efforts required to explain the rule to voters and to respond to related inquiries, including an increase in support calls.

Other commenters argued that, when a federal entity issues new standards, it must assess whether there were reliance interests, determine whether these interests were significant, and weigh any such interests against competing policy concerns, and alleged that the Postal Service has failed to do so. Commenters argued that the rule would create a “one size fits all” federal policy that would displace established state and local practices driven by the needs of different localities and grounded in reliance on the Postal Service's dependable transmission of mail-in and absentee ballots. As noted above, commenters further focused on reliance interests related to preparations for the 2026 election cycle.

Commenters argued that the proposed rule was not sufficiently tied to its stated purpose—namely to help ensure election integrity, fraud prevention, and facilitation of federal law enforcement. In their view, the proposed rule provides no empirical evidence or other explanation to articulate why existing election mail procedures are deficient, what operational problem would be solved by the Portal, or how IMb data would help mitigate or investigate election crimes. Numerous commenters also argued that, the proposed rule would not provide any material new information to law enforcement.

Some commenters who opposed 705.24.4 and 705.24.5 were supportive of the mailpiece envelope design provisions of 705.24.3. However, those commenters noted that many of the envelope design best practices the rule would mandate are already available and used voluntarily. Commenters argued that converting these recommendations into federal requirements adds cost and operational risk for election officials without counterbalancing benefits.

Several commenters also argued that the Postal Service should evaluate less restrictive alternatives. For example commenters suggested: voluntary pilot programs, phased implementation after the 2026 election cycle or a capacity-adjusted implementation timeline, aggregate or post-mailing reconciliation, data minimization, hashed or non-voter-identifying records, safe harbors for minor or correctable defects, mandatory acceptance during Portal outages, making the data entry standards optional, and emergency escalation procedures for replacement ballots, late-added voters, court-ordered ballots, and small-volume local mailings. Other commenters argued that rejection of Outbound Federal Ballot Mail for failure to satisfy preparation and data entry standards is a disproportionate consequence compared to the monetary penalties imposed elsewhere in the DMM for failing to meet other preparation or eligibility standards after an administrative review. See DMM 607.

After careful consideration of these various viewpoints, and the comments discussing these issues, the Postal Service is moving to finalize the proposed rule, subject to certain modifications explained in “Revisions Adopted in the Final Rule.”

The Postal Service has thoroughly explained the rationale for imposing mail preparation and data reporting requirements as set forth in the proposed rule, which are necessary to help promote the faithful execution of federal law and advance the Postal Service's ability to efficiently handle Federal Ballot Mail. While the Postal Service's existing processes are designed to support the timely delivery and smooth processing of ballot mail, it has long recognized that across-the-board compliance with its longstanding recommendations would further improve efficient handling, processing, and delivery. This would benefit the Postal Service, election officials, and voters alike. Moreover, while the Postal Service currently does obtain scan data for some ballot mail that could be useful for law-enforcement purposes, mandating compliance with the data reporting and mail-preparation requirements for all Federal Ballot Mail would significantly improve the quality of that data. This visibility will, in turn, put law enforcement in a better position to identify any potential issues regarding compliance with federal law that may merit further investigation.

Weighing these benefits and the operational needs of the Postal Service, the rule is intended to minimize the burden and impact on voters and election officials, while still achieving the rule's purposes. Under this rule, states will retain complete autonomy to determine voter eligibility to use the mail to vote, as they do today. If their state complies with the rule's relatively modest mail preparation and data entry standards, voters should not experience any difference from the status quo. The Postal Service anticipates that all states will make a good faith effort to comply with the rule, consistent with the belief expressed by some commenters, thereby enabling eligible voters to continue to use the mail to vote. Overall, the rule imposes requirements that are rationally and carefully tailored to the underlying purposes of the rule. The Postal Service would also reiterate that the rule does not mandate that states administer elections in a “one size fits all” manner; on the contrary, state election laws and practices will continue to vary in accordance with state law, as states will retain control over the manner of their elections, unaltered by the rule. The rule requires merely that states that choose to use the U.S. mail as part of their elections adhere to certain standard mailpiece design and data reporting standards when sending Federal Ballot Mail.

The Postal Service also notes that some commenters narrowly focused their concerns on the purportedly substantial costs and practical challenges that election officials would presently face in attempting to comply with the rule for the November 2026 general election. The Postal Service recognizes that the rule would require states to adjust their processes and adapt to the changes imposed by the rule, potentially incurring new costs. While the Postal Service has weighed these considerations, including the possibility that some jurisdictions would need to order new ballot envelopes and devote resources to complying with the new envelope-design standards and reporting requirements, those considerations have to be balanced against the benefits of the rule, and in particular the fact that these standards are necessary to ensure the faithful execution of federal law. Given that mail-in ballots subject to this rule are generally mailed in September or thereafter, an immediate effective date ensures the maximum possible time for election officials to adjust their ballot mail envelopes to meet the new preparation standards if necessary, and to prepare to submit data to the Portal once it becomes active. This promotes states' and political subdivisions' ability to successfully implement the rule prior to the 2026 general election with good faith efforts and the available postal resources, notwithstanding the comments that described this task as “impossible.” And despite any logistical or financial difficulties states may face complying with the rule, including some claims that immediate implementation would prove impossible, the visibility and law-enforcement benefits of the rule, including for this election cycle, are such that there is no compelling reason for any delay. In recognition of the potential burdens on election officials and the timeline involved, the Postal Service will make available considerable educational and other support resources discussed above to assist election officials with implementation and help facilitate timely compliance with the rule.

The Postal Service has also considered alternatives to the proposed rule, including both more and less restrictive options. The Postal Service received comments proposing a number of alternatives including: using registered mail to transmit ballots; performing verification of additional forms of data (including name, address, or Return Federal Ballot Mail envelope IMb); expanding the rule to cover primaries or all voters; making all of the rule's provisions optional; eliminating verification and rejection procedures; and not requiring a unique IMb on return ballot envelopes.

As explained above, the Postal Service believes the proposed rule, as modified in the final rule, is appropriate in scale and scope. A more restrictive approach is unnecessary to achieve the goals of the rule and realize the related benefits. At the same time, the sensitivity of Outbound Federal Ballot Mail, the importance of voter confidence and election security, and the ability to support law enforcement purposes that are necessary to ensure the faithful execution of federal law require the inclusion of the verification and rejection procedures as set forth in 704.24.5 in order to fulfill the purposes of the rule. A less restrictive approach would not achieve all of the rule's benefits. For example, scans from unique IMbs provide a level of visibility into individual mailpieces that is not possible using non-serialized IMbs. The Postal Service agrees with commenters that this visibility is dependent on the mailpieces being scanned, and believes that the potential for improved visibility made possible by the use of unique IMbs on both Outbound and Return Federal Ballot Mail better serves the intended goals of the rule than if a unique IMb were only on Outbound Federal Ballot Mail. Moreover, if the rule were not applied in a consistent, nationwide fashion ( e.g., if its provisions only applied to some ballot mail, were optional, or if there were a phased roll-out), it may prevent the full benefits of the rule from being realized, prove unadministrable, and could potentially cause confusion and delays.

The final rule creates an appropriate balance of the purported burdens imposed by the rule against its intended benefits. As one commenter explained, election integrity and voter access are complementary goals. Any regulatory changes should strengthen public confidence while avoiding unnecessary obstacles to the timely and reliable delivery of election mail. This rule properly balances those considerations.

Numerous commenters expressed concern over the Postal Service's ability to successfully implement this rule. They expressed concern over whether the Postal Service had the necessary financial resources and staffing capacity and conjectured that proposed rule would saddle the Postal Service with election administration functions; require additional clerks, mailpiece design personnel, information technology support staff, and other human resources; and impose new obligations on retail offices and field operations.

Other commenters sought clarification about the training that postal employees would need to perform the new processes set forth in the rule. Other commenters, including some postal employees, questioned whether postal employees could satisfy their obligations under the Hatch Act and to the public under the rule.

The Postal Service is prepared to implement the rule, consistent with its legal obligations and available resources. The Postal Service already possesses the necessary staffing capacity at BMEUs and retail locations as well as mail acceptance infrastructure necessary to administer the rule: wholly new institutional capacity does not need to be built from scratch. The Postal Service currently operates nationwide digital systems through the Business Customer Gateway and PostalOne!, and business mailers must already submit mailing documentation electronically. The Postal Service also maintains centralized support channels, including the MDA help desk. Furthermore, as stated in the Notice of Proposed Rulemaking, the Postal Service has available or will soon publish resources to assist election officials with compliance, including technical instructions on barcode creation, service type identifiers, acceptance processes, file preparation, documentation submission, and entry of data into the proposed portal. The addition of a new compliance review for a small subset of overall mail volume is not expected to require additional staff or be a significant burden on employees. Since the rule builds on processes already in place for election mail, its implementation should not prove inordinately costly. The Postal Service is able to balance the cost of implementing the rule, including developing the Portal, with the costs required to fulfill its other core operational responsibilities.

As explained above, there are only a few categories of employees who will be directly responsible for verifying compliance with the rule under 705.24.5, namely BMEU technicians, Retail clerks, and discrete support functions like employees in the PCSC. For employees in direct operational roles, the new pre-acceptance verification measures are similar to, and are no more onerous than, other mailing manifest reviews. With respect to other provisions in the rule, the Postal Service also recognizes that MDAs will see an increase in mailpiece design review requests under the rule. The Postal Service is committed to ensuring this process is completed in a timely manner, consistent with current customer expectations.

The Postal Service agrees that proper training to ensure nationwide consistency is important. The Postal Service is developing specific training for employees who will be directly responsible for conducting verification under the rule. Retail clerks and BMEU technicians will be trained on how to identify Federal Outbound Ballot Mail and what the scanning verification process requires. The training will be rolled out and conducted consistently with the Postal Service's usual processes. Additionally, MDAs will receive training on the rule's design requirements and recordkeeping requirements.

It is important to remember that the vast majority of employees will not experience a change in their responsibilities as a result of the rule. For example, letter carriers and employees in delivery and processing functions will not have any new responsibilities. These employees will continue to process and deliver ballot mail, including Federal Ballot Mail, and all other election mail, consistent with existing Postal Service processes, procedures, and guidance. Letter carriers and employees in processing and delivery functions will not validate, withhold, delay, or remove ballots in the mailstream.

The rule's requirements should not impact how the Postal Service processes and delivers Federal Ballot Mail. Longstanding processing and delivery practices for completed ballots that enter the mainstream will remain unchanged. As noted, designing automation compatible mailpieces, inclusion of the Official Election Mail logo, serialized IMbs on both the outbound and return ballots, and MDA mailpiece review have long been key components of the Postal Service's best practices guidance for ballot mail. Ensuring compliance with these longstanding recommendations, together with verification processes for IMbs on Outbound Federal Ballot Mail, lie within the Postal Service's zone of competence, and can therefore be incorporated into the Postal Service's normal course of operations.

The Postal Service would also note that the rule does not implicate the Hatch Act, as it neither directs nor authorizes any partisan political activity as defined by that Act by Postal Service employees.

The Postal Service received a number of comments concerned that creating a centralized data repository with voter information would make elections less secure. These comments argued that creating a centralized Portal establishes a high-value target for state-sponsored cyberattacks, other data breaches, and election disruption, and that the recent rise of AI-enhanced hacking technology increases these risks. For these commenters, the value of the Portal is minimal because it is, they argue, largely duplicative of existing state systems, and, in their view, does not justify the risk. Commenters contend that decentralized election systems improve election security.

Some commenters were concerned about the Postal Service's ability to maintain and protect data in complex, public-facing systems, with a few commenters suggesting technology, services, and other resources that the Postal Service could use to create the Portal. Commenters noted that system outages, technical malfunction or cyberattacks impacting the Portal could impact, or potentially halt, Outbound Federal Ballot mailings across multiple states simultaneously. Others emphasized that neither the Portal nor any related technical specifications are currently available; as a result, these commenters questioned whether election offices (especially those in small or under-resourced jurisdictions) would have the time and technical capacity to build the required data files immediately.

The Postal Service has extensive experience in developing, maintaining, and safeguarding public-facing data systems. The Postal Service faces ongoing cyberthreats and challenges that could directly impact customers, partners, and employees, and it is well prepared to defend against these threats. The Postal Service's Corporate Information Security Office (CISO) protects its critical stakeholders by safeguarding the postal network, monitoring threats, and responding to incidents. As with comparable organizations in the government and private-sector, cybersecurity is a top priority for the Postal Service.

Against this backdrop, the Postal Service maintains a vast commercial public-facing website and has a number of existing systems for mailers to enter data to satisfy other mail preparation standards. It also has experience in quickly developing and deploying public-facing websites, like the website created to facilitate ordering and distribution of COVID-19 test kits. These are high-volume systems that maintain sensitive data. The Postal Service has specific guidelines and protocols in place for protecting and handling the sensitive and critical data contained within these systems. In short, contrary to commenters' claims and concerns, the Postal Service has meaningful experience developing and operating a system like the Portal.

The Portal will contain multi-layered security controls, including encrypted data transmission and storage, strict access management with multi-factor authentication, and role-based permissions. The system will be protected by enterprise-grade network defenses, real-time monitoring, and comprehensive audit logging, ensuring that sensitive data is accessible only to authorized officials and is retained securely.

As discussed above in “Operation of the Final Rule,” there are free, optional tools available that can assist election officials and Federal Ballot Mail Portal Users in generating the data files necessary to satisfy the rule's data reporting requirements and ensure that the necessary information for Outbound Federal Ballot mailings is available to satisfy verification and be accepted into the mailstream. Jurisdictions using a vendor may already have such data files prepared as part of other mailing documentation. In either case, the burdens are modest and can be timely satisfied.

Commenters, including election officials, raised concerns about the ability of election officials to satisfy the requirements of the rule while also complying with various state laws. For example, some comments argued that the obligation to provide Portal data for inclusion on a state-specific List could require election officials to choose between complying with state privacy laws or the rule. Other commenters questioned election officials' ability to satisfy the rule's requirements while also complying with state statutory timing requirements for requesting, processing, and issuing ballots. And others argued that the rule would impact state and local elections where consolidated ballots are used.

The decision of how to arrange ballots is a matter for the states. Ballots that contain both federal and state or local elections are covered by the rule. States can easily avoid any effects on their state elections by either complying with the rule's requirements or by separating their federal ballots to exclude any non-federal elections. Either is permissible under the rule and would eliminate any impact on exclusively state or local elections.

The rule is also not facially incompatible with the various timing provisions in state election law. The envelope design review, data entry, and verification processes set forth in the rule should be relatively quick to complete and should not significantly alter the timeline for election officials. The rule's requirements will permit an election official to prepare and send Outbound Federal Ballot Mail near election day, as they do now. And, once Outbound Federal Ballot Mail is accepted into the postal network, the Postal Service has a strong track record of promptly delivering ballots to and from voters.

The rule also does not require that sensitive voter information be made public, like birthdates or social security numbers that may be protected from disclosure by state law. For one thing, the Portal and the Lists will not contain this kind of sensitive information; they include information that appears on the outside of the ballot mail envelopes. For another, the Lists and the underlying Portal data will not be made publicly available. There are existing statutory and regulatory protections against the disclosure of customer addresses and other sensitive information. For example, while 39 U.S.C. 410 provides that the Postal Service is subject to the Freedom of Information Act and the Privacy Act, it limits the scope of access to certain kinds of postal records. In particular, Section 410(c)(1) provides that neither law requires the Postal Service to release “the name or address, past or present, of any postal patron.” Similarly, postal regulations provide that disclosures of address information may be made to state and local governments and law enforcement agencies, but generally prohibit disclosure of an individual person's mailing address to a non-government individual except in limited, enumerated circumstances. 39 CFR 265.14(d)(2)-(5), (9). Furthermore, as discussed above and reiterated below, many of these privacy concerns may be resolved by the information contained in the SOR for the Portal, which was published in the Federal Register on July 17, 2026.

The Postal Service received a small number of comments arguing that the proposed rule did not meaningfully address how the rule's requirements would affect tribal communities. Commenters were concerned about the ability of election officials to generate unique IMbs for nontraditional mailing addresses used by many Native American households, and about the impact of the rule more broadly given the unique mail delivery challenges that can impact these communities. Other commenters advocated for tribal consultation prior issuance of a final rule. In particular, one commenter argued that the rule should not be finalized until the Postal Service conducted formal consultation with federally recognized tribes pursuant to Executive Order 13175.

As the Postal Service has explained, the rule does not require any change to existing addressing practices. It only requires that the address uploaded into the Portal be the address used on the Outbound Federal Ballot Mail envelope. Election officials may continue to address ballots to nontraditional addresses and may generate unique IMbs for these addresses to comply with the rule. As discussed above, election officials may be able to use the free IMsb tool to generate a unique IMb even if these addresses cannot be validated through DPV.

With respect to consultation, the Postal Service will continue to work with tribal stakeholders as part of its broader outreach, education, and implementation efforts. However, Executive Order 13175 does not require the Postal Service to engage in such consultations. Only agencies covered by the Paperwork Reduction Act are subject to that Executive Order and, as noted above, the Postal Service is outside the Paperwork Reduction Act's scope. Shane, 658 F. Supp. at 915; accord Kuzma, 798 F.2d at 32. Therefore, consultation under Executive Order 13175 is not required prior to finalizing the rule.

The Postal Service received several comments requesting detailed analysis about the potential impact of the proposed rule and recommending that the results of any such analysis be published before issuing a final rule. For example, requests were made for a state-by-state analysis of the rule's impact; impact assessments for Tribal communities and UOCAVA voters (despite the express exclusion of UOCAVA ballots from the rule's scope); detailed information about the development of this rule and the Portal; an evaluation of any differential administrative burdens based on the size or resources of election jurisdictions; an assessment of the anticipated ballot-rejection rate under DMM 705.24.5; and a formal disability accessibility impact assessment before finalizing any changes to ballot mail procedures.

The Postal Service declines to conduct, publish, or otherwise disclose any additional analysis or information concerning the rule or Portal. The Postal Service has received sufficient information through public comments to assess the impact of the proposed rule and issue this final rule. Each state and political subdivision thereof may choose different means to satisfy the rule's mail preparation and data entry requirements based on their own capabilities and resources. As a result, the impact on states may vary but these decisions are not dictated by the Postal Service. Similarly, the Postal Service anticipates that the rejection rate of Outbound Federal Ballot Mail will be low, as states need only comply with the final rule's relatively modest mail preparation and data entry standards.

The Postal Service received numerous comments urging it to publish a new SORN for the Federal Ballot Mail Portal in accordance with the Privacy Act. Commenters sought information about retention periods for Portal data, access to that data, and limits on disclosure, among other things. While these comments are outside the scope of this rulemaking, the Postal Service separately took steps necessary for the creation of a SORN, as stated in the Notice of Proposed Rulemaking. On July 17, 2026, the SORN was published in the Federal Register . 91 FR 44880. As explained in the SORN, a SOR will need to be in place to implement this final rule, because no data will be collected through the Portal or disclosed until a SOR is in place. The SORN provides details regarding retention periods, access, disclosure, and the other matters raised by commenters. Comments will be accepted on the SORN for 30 days. Interested parties were invited to submit comments.

In the Notice of Proposed Rulemaking, the Postal Service specifically invited comments on the exemption in the proposed rule for UOCAVA voters. Many commenters supported this exemption. Other commenters, while supporting the exemption, believed that the rule's express exclusion of UOCAVA ballots was insufficient to exclude or protect UOCAVA voters. These commenters asked for more assurances and safeguards to ensure UOCAVA ballots would not be impacted by the rule, as errors could occur that would accidentally apply the rule's standards to UOCAVA ballots.

Some commenters opposed the exemption for UOCAVA ballots. These commenters argued that “[a]pplying the E.O. 14399 framework”—such as enhanced tracking and participation lists—to UOCAVA ballots would strengthen integrity without undermining access, while aligning with existing Postal Service special handling for election mail to and from military and overseas voters. Excluding them, in the opinion of some commenters, leaves a significant portion of ballot mail for federal elections outside the new security measures, and including UOCAVA ballots would create a more comprehensive, uniform system that better serves all eligible voters while deterring unlawful use of the mail.

The Postal Service finds that the proposed rule provides sufficient safeguards for UOCAVA voters as drafted and declines to make additional changes. Further safeguards and assurances are unnecessary because these voters will experience no change as a result of proper implementation of the rule given its exemption of UOCAVA ballots. At the same time, the exemption does not create an anomaly or otherwise undermine the stated purpose of the rule. Rather, it reflects the unique logistical circumstances that overseas and military voters and their family members face, consistent with the statutory scheme enacted by Congress.

Separately, other comments sought clarification on how the Postal Service would distinguish between ballots sent pursuant to UOCAVA and other mail-in or absentee ballots. Existing postal regulations require that ballots sent to and from UOCAVA voters include unique identifiers on the exterior of the envelope that are not present on the ballot envelopes for non-UOCAVA voters. Specifically, DMM 703.8.8.5 requires that envelopes for mailing and receiving absentee ballots under UOCAVA must contain the following words: “No Postage Necessary in the U.S. Mail—DMM 703.8.0.” Additionally, balloting envelopes for UOCAVA voters contain the statement: “U.S. Postage Paid 39 U.S.C. 3406.” These indicia enable the Postal Service to distinguish between UOCAVA ballots and ballots that fall within the scope of the rule. As explained above, UOCAVA ballots should be segregated from Outbound Federal Ballot Mail when presented for mailing. This will help ensure that both UOCAVA ballots and Outbound Federal Ballot Mail covered by the rule are properly accepted under applicable rules. Therefore, revisions to the proposed rule are unnecessary to ensure that UOCAVA ballots are distinguishable from Federal Ballot Mail.

The Postal Service received several comments about primary elections specifically. Describing primaries as gateways to federal general elections, and further noting that in noncompetitive districts, primaries may effectively determine the outcomes of federal races, commenters argued that the rule's exclusion of primary elections creates inconsistencies in tracking, verification, and security standards. Commenters contended that the Notice of Proposed Rulemaking inadequately explained why fraud prevention and law enforcement rationales for ballots for general, special, and runoff federal elections would not apply equally to primaries. These commenters opined that voters and election officials would benefit from uniform Postal Service requirements throughout the election cycle.

The Postal Service reaffirms that, consistent with the framework for the proposed rule set forth in Executive Order 14399, the rule will not apply to primaries. Primary elections involve the selection of political party nominees through procedures chosen by the parties themselves, not the election of federal officials; as such, they fall outside the rule's scope and reach.

As some commenters pointed out, survivors of domestic and sexual violence and/or stalking may experience significant privacy concerns related to the voter registration process. The fear of being located may deter such victims from voting in person, and even from registering to vote. Furthermore, as commenters noted, survivors of domestic violence, sexual violence, and/or stalking often relocate multiple times and/or postpone updating public records until adequate safety measures are in place. For these reasons, commenters concluded, many survivors rely crucially on the ability to vote by mail.

According to commenters, to assist such survivors, forty-seven states have instituted Address Confidentiality Protection programs (“ACPs”)—confidential mail forwarding services available to survivors of domestic violence, stalking, sexual violence, child abduction and/or human trafficking who have recently relocated to a location unknown to their abuser or stalker. To ensure participant safety, commenters explained, ACPs typically shield participants from appearing in public voter files, usually by substituting alternative addresses or keeping records entirely offline. Often, ACP registration is entered manually in a locked file and not entered into the state's typical voter registration system. The ballot is then mailed to the state's substitute address, which, by design, differs from the voter's confidential actual address. In some instances, even an individual's name is protected under ACPs. Some commenters also noted that other states have additional privacy protections in place for participants.

Some commenters voiced concern that including information about these voters in the Portal and the contemplated exchange of this information through the state-specific Mail-In and Absentee Participation Lists would compromise ACP and other confidentiality programs and may call into question compliance with certain state requirements. One commenter noted a lack of guidance as to whether states would be required to upload survivors' actual physical addresses to the Portal, or whether the Postal Service (or other entities within the federal government) would question mailing ballots to a potentially large number of voters registered to a single alternative mailing address. Other commenters criticized the proposed rule for allegedly increasing risks to survivor safety. One commenter cited recent large-scale privacy breaches affecting government agencies and suggested that Mail-In and Absentee Participation Lists in the Postal Service's custody (including, presumably, the private information of voters protected under ACPs) could fall prey to such a breach.

The Postal Service clarifies that the rule requires that the name and address used on the outside of a ballot envelope be submitted to the Portal; it would not require that confidential information known only to the state be provided. The information in the Portal would also not be publicly disclosed, and the Postal Service has taken appropriate cybersecurity measures with respect to the Portal cybersecurity as discussed above. For these reasons, the proposed rule is compatible with state ACP programs.

A small number of commenters recommended that the rule be accompanied by ambitious operational changes, including a dedicated postal-run “state ballot box” into which only ballots would be placed, the establishment of a separate processing and delivery system for ballots, and fundamental Mailer ID redesign (a key component of IMbs).

The Postal Service declines to adopt these proposals. Such large-scale (and costly) operational changes are not necessary to accomplish the rule's objectives.

Very few comments included recommended changes to the rule itself. The Postal Service received several suggestions that would result in a more expansive final rule ; however, these suggestions fall outside the scope of this rulemaking and the Postal Service's authority. For instance, a few commenters encouraged the Postal Service to add provisions into the rule to verify a voter's citizenship status as a condition of mail acceptance. Other commenters advocated for exclusively in-person voting, and still others proposed only accepting ballots that are received by Election Day. The Postal Service also received comments recommending a narrower final rule that would retain the proposed rule's provisions concerning ballot envelope design for Federal Ballot Mail, in 705.24.3, and eliminate the rule's other substantive provisions, namely 705.24.4 and 705.24.5. Within the scope of this rulemaking, the Postal Service is making several changes in response to the concerns discussed above.

First, the Postal Service makes clear that the verification process set forth in 705.24.5 ( i.e., mail sent by authorized ballot mailers) does not apply to Return Federal Ballot Mail. Many comments demonstrated a factual misunderstanding about the inapplicability of these verification procedures to return ballots. Given the widespread confusion, the Postal Service believes that clarifying the final rule will reduce voter confusion and help ensure consistent implementation of the rule. However, as noted above, for individuals transmitting Return Federal Ballot mail to be in compliance with this rule, Return Federal Ballot Mail must be mailed in an envelope that meets the requirements of 705.24.3.2. As under existing law, voters may use their residential mailbox, any retail counter, or other authorized means to transmit their compliant Return Federal Ballot Mail.

In the event a voter loses or misplaces the Return Federal Ballot Mail envelope provided by the Authorized Ballot Mailer, or if the Authorized Ballot Mailer fails to provide the voter with a compliant Return Federal Ballot Mail envelope, the voter should request a replacement envelope from the Authorized Ballot Mailer that conforms to 705.24.3.2. The Postal Service may also provide such other means as reasonably determined by the Postal Service for transmitting Return Federal Ballot Mail consistent with the requirements of this rule. This will provide visibility and scan data for these ballot envelopes when processed on the Postal Service's automated equipment.

Second, there was confusion over how the MDA review requirements would be verified and enforced, and the circumstances under which the MDA review requirements could lead to an Outbound Federal Ballot mailing being rejected. As set forth above, certification of MDA review will not be verified when an Outbound Federal Ballot mailing is presented for acceptance. Instead, prior to uploading data into the Portal, Federal Ballot Mail Portal Users will be prompted to certify that their ballot envelope design has been submitted for review by an MDA and that the MDA has provided feedback. If they do not provide such certification, Federal Ballot Mail Portal Users will be unable to upload data into the Portal. To reduce confusion and clarify the responsibilities of Federal Ballot Mail Portal Users, the Postal Service is amending the language in 705.24.3.1, 705.24.3.2, and 705.24.4.2.f, and striking 705.24.5.3.b from the final rule.

Third, the Postal Service is amending the language in 705.24.3.1.c and 705.23.3.2.c to make clear that Authorized Ballot Mailers are responsible for creating IMbs. The Postal Service is also amending the language in 705.24.4.2.b.3 and 705.24.4.2.b.4 to clarify that the unique IMb submitted into the Portal is the IMb printed on the Outbound and Return Federal Ballot Mail envelopes. These clarifications are intended to reduce confusion and provide clarity for Federal Ballot Mail Portal users; they do not substantively change the rule's data reporting requirements.

Fourth, the Postal Service is amending the language in 705.24.5.2 to clarify that only commercial mailings are subject to commercial mailing standards and regulations. There was confusion over whether non-commercial mailings must be entered at BMEUs or otherwise meet commercial mailing standards. The Postal Service has simplified the language in 705.24.5.2 to help avoid confusion.

Finally, the Postal Service is changing the term “Ballot Portal User” to “Federal Ballot Mail Portal User” to clarify the relationship between Federal Ballot Mail, the rule's data standards, and the Federal Ballot Mail Portal. The Postal Service's hope is that this reduces confusion about the application of rule's data-entry requirements to other ballot mail as well as confusion about data entry that needs to be performed at the state-level.

After evaluating the comments, the Postal Service is adopting the new DMM Section 705.24. The final text of DMM Section 705.24 incorporates the revisions noted above. Accordingly, 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):

TSCA section 5(a)(2) (15 U.S.C. 2604(a)(2)) authorizes EPA to determine that a use of a chemical substance is a “significant new use.” EPA must make this determination by rule after considering all relevant factors, including the factors in TSCA section 5(a)(2).

EPA is finalizing SNURs under TSCA section 5(a)(2) for the chemical substances identified in this document. These chemical substances were the subject of PMNs and are also subject to an Order issued by EPA pursuant to TSCA section 5(e)(1)(A), as required by the determinations made under TSCA section 5(a)(3)(B). The SNURs identify as significant new uses any manufacturing, processing, use, distribution in commerce, or disposal that does not conform to the restrictions imposed by the underlying TSCA Orders, consistent with TSCA section 5(f)(4). The SNURs require persons who intend to manufacture or process any of these chemical substances for an activity that is designated as a significant new use in the SNURs to notify EPA at least 90 days before commencing that activity.

Previously, EPA proposed SNURs for these chemical substances in the Federal Register of November 3, 2025 (90 FR 49148 (FRL-12742-01-OCSPP)). The docket includes information considered by the Agency in developing the proposed and final rules, including public comments and EPA's responses to the comments received as discussed in Unit II.D.

This action applies to you if you manufacture, process, or use the chemical substances identified in this document. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Manufacturers or processors of one or more subject chemical substances (NAICS codes 325 and 324110), e.g., chemical manufacturing and petroleum refineries.

This action may also apply to certain entities through pre-existing import certification and export notification requirements under TSCA ( https://www.epa.gov/tsca-import-export-requirements ).

Chemical importers are subject to TSCA section 13 (15 U.S.C. 2612), the requirements in 19 CFR 12.118 through 12.127, 19 CFR 127.28, and 40 CFR part 707, subpart B. Importers of chemical substances in bulk form, as part of a mixture, or as part of an article (if required by rule) must certify that the shipment of the chemical substance complies with all applicable rules and orders under TSCA, including regulations issued under TSCA sections 5, 6, 7 and Title IV.

Pursuant to 40 CFR 721.20, any persons who export or intend to export a chemical substance identified in this document are subject to the export notification provisions of TSCA section 12(b) (15 U.S.C. 2611(b)) and must comply with the export notification requirements in 40 CFR part 707, subpart D.

EPA has evaluated the potential costs of establishing SNUN reporting requirements for potential manufacturers and processors of the chemical substances identified in this document. This analysis, which is available in the docket, is briefly summarized here.

A SNUR requires that any person who intends to engage in such activity in the future must first notify EPA by submitting a SNUN. If a SNUN is submitted, costs are an estimated $45,000 per SNUN submission for large business submitters and $14,500 for small business submitters. These estimates include the cost to prepare and submit the SNUN (including registration for EPA's Central Data Exchange (CDX)), and the payment of a user fee. Businesses that submit a SNUN would be subject to either a $37,000 user fee required by 40 CFR 700.45(c)(2)(ii) and (d), or, if they are a small business as defined at 13 CFR 121.201, a reduced user fee of $6,480 (40 CFR 700.45(c)(1)(ii) and (d)). These estimates reflect the costs and fees as they are known at the time of this rulemaking.

EPA has also evaluated the potential costs associated with the pre-existing export notification requirements under TSCA section 12(b) and the implementing regulations at 40 CFR part 707, subpart D. For persons exporting a substance that is the subject of a SNUR, a one-time notice to EPA must be provided for the first export or intended export to a particular country. The total costs of export notification will vary by chemical, depending on the number of required notifications ( i.e., the number of countries to which the chemical is exported). While EPA is unable to make any estimate of the likely number of export notifications for the chemical substances covered by these SNURs, as stated in the accompanying economic analysis, the estimated cost of the export notification requirement on a per unit basis is approximately $106.

Unit II. of the proposed rule provides general information about SNURs, and additional information about EPA's new chemical program is available at https://www.epa.gov/reviewing-new-chemicals-under-toxic-substances-control-act-tsca.

To establish a significant new use, EPA must determine that the use is not ongoing. As discussed in Unit II.E. of the proposed rule, EPA concluded that the proposed significant new uses were not ongoing. If EPA subsequently determines that such a use was ongoing as of the date of publication of the proposed rule and did not cease prior to issuance of the final rule, EPA will not designate that use as a significant new use in the final rule. EPA has no information to suggest that any of the significant new uses identified in this rule meet this criterion.

As discussed in the Federal Register of April 24, 1990 (55 FR 17376 (FRL-3658-5)), EPA believes that the intent of TSCA section 5(a)(1)(B) is best served by designating a use as a significant new use as of the date of publication of the proposed rule rather than as of the effective date of the final rule. The objective of EPA's approach is to ensure that a person cannot impede finalization of a SNUR by initiating a significant new use after publication of the proposed rule but before the effective date of the final rule. Uses arising after the publication of the proposed rule are distinguished from uses that are identified in the final rule as having been ongoing on the date of publication of the proposed rule. The former would be new uses, the latter ongoing uses, except that uses that are identified as ongoing as of the publication of the proposed rule would not be considered ongoing uses if they have ceased by the date of issuance of a final rule.

In the unlikely event that before a final rule becomes effective a person begins commercial manufacturing (including importing) or processing of the chemical substances for a use that is designated as a significant new use in that final rule, such a person would have to cease any such activity upon the effective date of the final rule. To resume their activities, these persons would have to first comply with all applicable SNUR notification requirements and wait until all TSCA prerequisites for the commencement of manufacture or processing have been satisfied.

Issuance of a SNUR for a chemical substance does not signify that the chemical substance is listed on the TSCA Chemical Substance Inventory (TSCA Inventory). Guidance on how to determine if a chemical substance is on the TSCA Inventory is available on the internet at https://www.epa.gov/ tsca-inventory.

SNUNs must be submitted on EPA Form No. 7710-25, generated using e-PMN software, and submitted to the Agency in accordance with the procedures set forth in 40 CFR 720.40 and 721.25. E-PMN software is available electronically at https://www.epa.gov/reviewing-new-chemicals-under-toxic-substances-control-act-tsca.

EPA recognizes that TSCA section 5 does not require development of any particular new information ( e.g., generating test data) before submission of a SNUN. There is an exception: If a person is required to submit information for a chemical substance pursuant to a rule, order or consent agreement under TSCA section 4, then TSCA section 5(b)(1)(A) requires such information to be submitted to EPA at the time of submission of the SNUN.

In the absence of a rule, TSCA order, or consent agreement under TSCA section 4 covering the chemical substance, persons are required only to submit information in their possession or control and to describe any other information known to or reasonably ascertainable by them (see 40 CFR 720.50). However, upon review of PMNs and SNUNs, the Agency has the authority to require appropriate testing. To assist with EPA's analysis of the SNUN, submitters are encouraged, but not required, to provide the potentially useful information as identified for the chemical substance in Unit III.C. of the proposed rule.

EPA strongly encourages persons, before performing any testing, to consult with the Agency pertaining to protocol selection. Furthermore, pursuant to TSCA section 4(h), which pertains to reduction of testing in vertebrate animals, EPA encourages consultation with the Agency on the use of alternative test methods and strategies (also called New Approach Methodologies, or NAMs), if available, to generate the recommended test data. EPA encourages dialog with Agency representatives to help determine how best the submitter can meet both the data needs and the objective of TSCA section 4(h). For more information on alternative test methods and strategies to reduce vertebrate animal testing, visit https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/alternative-test-methods-and-strategies-reduce.

The potentially useful information described in Unit III. of the proposed rule may not be the only means of providing information to evaluate the chemical substance associated with the significant new uses. However, submitting a SNUN without any test data may increase the likelihood that EPA will take action under TSCA sections 5(e) or 5(f). EPA recommends that potential SNUN submitters contact EPA early enough so that they will be able to conduct the appropriate tests.

SNUN submitters should be aware that EPA will be better able to evaluate SNUNs which provide detailed information about human exposure and environmental release that may result from the significant new use of the chemical substances.

EPA received public comments on the proposed SNURs and prepared a Response to Comment document that provides the Agency responses. The comments and the Response to Comment document are available in the docket. As described in the Response to Comment document, EPA is finalizing these SNURs with the following changes:

• For P-18-281 and P-21-77 (40 CFR 721.12147), EPA is adding the exposure level threshold of 0.01 mg/m 3 8-hour time-weighted average (TWA) to the regulatory text. In the proposed rule, EPA inadvertently omitted the regulatory text for the term referencing the exposure monitoring threshold level of 0.01 mg/m 3 8-hour TWA. In addition, EPA is changing the term “no dust air releases of the PMN substance” to releases to air must be prevented “unless exhaust from enclosed equipment is treated with combined capture and control technology that achieves a ≥99.8% capture and control efficiency.” EPA agrees with the commentor that releases to air must be prevented unless exhaust from enclosed equipment is treated with combined capture and control technology that achieves a ≥99.8% capture and control efficiency.

Additionally, EPA identified the need to revise the following proposed SNURs (listed by PMN Number and proposed 40 CFR citation):

• For P-18-281 and P-21-077 (40 CFR 721.12147), EPA discovered that the respiratory protection requirement 721.62(a)(6) was erroneously omitted in the proposed rule. Therefore, EPA added the requirement 721.62(a)(6).

• For P-20-73 (40 CFR 721.12148), EPA discovered that a requirement, no use in a consumer product, was erroneously omitted in the proposed rule that is included in the consent order for P-20-73. Therefore, EPA added no use in a consumer product ( i.e., 721.80(o)).

•For P-22-2 (40 CFR 721.12149), EPA discovered an ongoing use for this chemical substance and added the following requirement: when the chemical substance is handled as a liquid, a respirator with an APF 50 is allowed.

• For P-23-30 (40 CFR 721.12160), EPA discovered that a hazard communication requirement that the substance is toxic to aquatic life was erroneously omitted in the proposed rule that is included in the consent order for P-23-30. Therefore, EPA added toxic to aquatic life to the required hazard communication ( i.e., 727.72(g)(3)(iii)).

• For P-24-71 through P-24-74 (40 CFR 721.12179-40 CFR 721.12182), EPA discovered that a hazard communication requirement that the substances for P-24-71 through P-24-74 are toxic to aquatic life was erroneously omitted in the proposed rule that is included in the consent order for P-24-71 through P-24-74. Therefore, EPA added toxic to aquatic life to the required hazard communication ( i.e., 727.72(g)(3)(iii)).

EPA is not finalizing the SNUR proposed at 40 CFR 721.12154 for P-22-0126 because the Agency has received new information on this substance requiring further review. This proposed SNUR will be addressed in a separate action.

EPA did not propose a SNUR for P-22-0187 at 40 CFR 721.12158 because the Agency received new information on this substance requiring further review. The Agency will propose a SNUR in a separate action.

EPA designates the date of publication of the proposed rule as the cutoff date for determining whether the new use is ongoing, i.e., November 3, 2025 (90 FR 49148 (FRL-12742-01-OCSPP)). This designation is explained in more detail in Unit II.B.

In Unit III.C. of the proposed rule, EPA provided the following information for each chemical substance subject to these SNURs:

• PMN number (the CFR citation assigned in the regulatory text section of this document).

• Chemical name (generic name, if the specific name is claimed as CBI).

• Chemical Abstracts Service Registry Number (CASRN) or Accession Number (if assigned, for confidential chemical identities).

• Basis for the SNUR ( e.g., effective date of and basis for the TSCA Order).

• Potentially useful information.

The regulatory text section of this document specifies the chemical substances and activities designated as significant new uses. Certain new uses, including production volume limits and other uses designated, may be claimed as CBI, as discussed in more detail in Unit II.C. of the proposed rule.

In addition, as discussed in Unit III.B. of the proposed rule, these SNURs include PMN substances that are subject to orders issued under TSCA section 5(e)(1)(A), as required by the determinations made under TSCA section 5(a)(3)(B). Those TSCA Orders require protective measures to limit exposures or otherwise mitigate the potential unreasonable risk. As such, the SNURs identify as significant new uses any manufacturing, processing, use, distribution in commerce, or disposal that does not conform to the restrictions imposed by the underlying TSCA Orders, consistent with TSCA section 5(f)(4).

Additional information about these statutes and Executive orders can be found at https://www.epa.gov/laws-regulations-and-executive-orders.

This action establishes SNURs for new chemical substances that were the subject of PMNs. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866 (58 FR 51735, October 4, 1993).

Executive Order 14192 (90 FR 9065, February 6, 2025) does not apply because a significant new use rule for a new chemical under TSCA section 5 is exempt from review under Executive Order 12866.

According to the PRA (44 U.S.C. 3501 et seq. ), an agency may not conduct or sponsor, and a person is not required to respond to a collection of information that requires OMB approval under PRA, unless it has been approved by OMB and displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in title 40 of the CFR, after appearing in the Federal Register , are listed in 40 CFR part 9, and included on the related collection instrument or form, if applicable.

The information collection requirements related to SNURs have already been approved by OMB pursuant to PRA under OMB control number 2070-0038 (EPA ICR No. 1188). This action does not impose any burden requiring additional OMB approval. If an entity were to submit a SNUN to the Agency, the annual burden is estimated to average between 30 and 170 hours per submission. This burden estimate includes the time needed to review instructions, search existing data sources, gather and maintain the data needed, and complete, review, and submit the required SNUN.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA (5 U.S.C. 601 et seq. ). The requirement to submit a SNUN applies to any person (including small or large entities) who intends to engage in any activity described in the final rule as a “significant new use.” Because these uses are “new,” based on all information currently available to EPA, EPA has concluded that no small or large entities presently engage in such activities.

A SNUR requires that any person who intends to engage in such activity in the future must first notify EPA by submitting a SNUN. Although some small entities may decide to pursue a significant new use in the future, EPA cannot presently determine how many, if any, there may be. However, EPA's experience to date is that, in response to the promulgation of SNURs covering over 1,000 chemicals, the Agency receives only a small number of notices per year. For example, the number of SNUNs received was 7 in Federal fiscal year (FY) 2020, 9 in FY2021, 9 in FY2022, 23 in FY2023, and 7 in FY2024, and only a fraction of these submissions were from small businesses.

In addition, the Agency currently offers relief to qualifying small businesses by reducing the SNUN submission fee from $37,000 to $6,480. This lower fee reduces the total reporting and recordkeeping cost of submitting a SNUN to about $14,500 per SNUN submission for qualifying small firms. Therefore, the potential economic impacts of complying with these proposed SNURs are not expected to be significant or adversely impact a substantial number of small entities. In a SNUR that was published in the Federal Register of June 2, 1997 (62 FR 29684 (FRL-5597-1)), the Agency presented its general determination that SNURs are not expected to have a significant economic impact on a substantial number of small entities, which was provided to the Chief Counsel for Advocacy of the Small Business Administration.

This action does not contain an unfunded mandate of $100 million or more (in 1995 dollars) in any one year as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. Based on EPA's experience with proposing and finalizing SNURs, State, local, and Tribal governments have not been impacted by SNURs, and EPA does not have any reasons to believe that any State, local, or Tribal government will be impacted by these SNURs. In addition, the estimated costs of this action to the private sector do not exceed $183 million or more in any one year (the 1995 dollars are adjusted to 2023 dollars for inflation using the GDP implicit price deflator). The estimated costs for this action are discussed in Unit I.D.

This action will not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it is not expected to have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, the requirements of Executive Order 13132 do not apply to this action.

This action will not have Tribal implications as specified in Executive Order 13175 (65 FR 67249, November 9, 2000), because it is not expected to have substantial direct effects on Indian Tribes, significantly or uniquely affect the communities of Indian Tribal governments and does not involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of Executive Order 13175 do not apply to this action.

This action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it does not concern an environmental health or safety risk. Since this action does not concern a human health risk, EPA's 2026 Policy on Children's Health also does not apply. Although the establishment of these SNURs do not address an existing children's environmental health concern because the chemical uses involved are not ongoing uses, SNURs require that persons notify EPA at least 90 days before commencing manufacture (defined by statute to include import) or processing of the identified chemical substances for an activity that is designated as a significant new use by the SNUR. This notification allows EPA to assess the intended uses to identify potential risks and take appropriate actions before the activities commence.

This action is not a “significant energy action” as defined in Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

This action does not involve any technical standards subject to NTTAA section 12(d) (15 U.S.C. 272 note).

This action is subject to the CRA (5 U.S.C. 801 et seq. ), and 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).

For the reasons stated in the preamble, 40 CFR chapter I is amended as follows:

The Foundation operates under the National Foundation on the Arts and the Humanities Act of 1965, as amended (20 U.S.C. 951 et seq. ), and consists of the National Endowment for the Arts (NEA), the National Endowment for the Humanities (NEH), the Institute of Museum and Library Services (IMLS), and the Federal Council on the Arts and the Humanities (FCAH). The NEA, NEH, IMLS, and FCAH are collectively referred to as the “Foundation's constituent agencies” or the “constituent agencies.”

This rule rescinds portions of the Foundation's regulations promulgated pursuant to Title VI, 42 U.S.C. 2000d-1, to more closely align its regulations with the language that Congress enacted in Title VI prohibiting intentionally discriminatory conduct, see 42 U.S.C. 2000d. There are serious statutory and constitutional concerns with the legality of provisions in the Foundation's Title VI regulations that go beyond intentional discrimination by prohibiting conduct that has an unintentional disparate impact. This rule accordingly rescinds those portions of the regulations, which are in considerable tension with both the statute and the Constitution and do not sufficiently serve the public interest. First, this rule rescinds the full text of 45 CFR 1110.3(b)(2), which currently prohibits the utilization of “criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin.” Second, this rule removes the two uses of the phrase “or effect” from 45 CFR 1110.3(b)(3). Third, this rule rescinds the full text of 45 CFR 1110.3(b)(6). Fourth, this rule rescinds the full text of 45 CFR 1110.3(c)(3), which addresses employment practices of Federal funding recipients. Fifth, this rule rescinds the full text of the illustrative applications and examples under 45 CFR 1110.5(e), (f), and (g), in order to conform the illustrative applications to the foregoing revisions.

The rule's revisions also conform to Executive Order 14281, Restoring Equality of Opportunity and Meritocracy, 90 FR 17537 (Apr. 23, 2025). That Order states that “[i]t is the policy of the United States to eliminate the use of disparate-impact liability in all contexts to the maximum degree possible to avoid violating the Constitution, Federal civil rights laws, and basic American ideals.” Id. at 17537.

The practical impact of this rule's modifications will be to clarify for the constituent agencies' recipients of Federal funding that the revised Title VI regulations do not prohibit conduct or activities that have a disparate impact and prohibit only intentional discrimination, and thus that the Foundation's constituent agencies will not pursue Title VI disparate-impact liability against their funding recipients.

Title VI of the Civil Rights Act of 1964, as amended, provides: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. 2000d. Title VI also directs Federal departments and agencies that extend Federal financial assistance to “effectuate the provisions of” Title VI “by issuing rules, regulations, or orders of general applicability.” 42 U.S.C. 2000d-1. The section of Title VI that sets forth the prohibited conduct, 42 U.S.C. 2000d, specifically prohibits intentional discrimination and makes no reference to unintentional disparate effects or impact. See Alexander v. Sandoval, 532 U.S. 275, 280 (2001) (“[I]t is . . . beyond dispute—and no party disagrees—that [Title VI] prohibits only intentional discrimination.”). The statute does not provide any Federal department or agency with authority to prohibit unintentional disparate impact. And despite ample opportunities, Congress has enacted no subsequent amendments to Title VI to impose disparate-impact liability.

Pursuant to Executive Order 12250, “[t]he Attorney General shall coordinate the implementation and enforcement by Executive agencies of . . . Title VI.” 45 FR 72995, 72995 (Nov. 2, 1980). Accordingly, the Department of Justice (DOJ) acts as the lead Federal agency responsible for defining the nature and scope of Title VI's prohibition of discrimination on the basis of race, color, and national origin in programs or activities receiving Federal financial assistance. The Order directs DOJ to, among other things, “develop standards and procedures for taking enforcement actions and for conducting investigations and compliance reviews.” Id. Further, as part of this responsibility, the Order provides that other Federal agencies' regulations implementing Title VI are also subject to the Attorney General's approval. Id. at 72996.

The initial set of model regulations for Title VI were issued by the then-Department of Health, Education, and Welfare on December 4, 1964, which included only one reference to the “effect of” conduct in the “discrimination prohibited” provision of the rule. See 29 FR 16298, 16299 (Dec. 4, 1964) (codified at 45 CFR 80.3(b)(2)). In 1973, the Foundation promulgated its regulations under Title VI. 38 FR 17991 (July 5, 1973). In 1997, the Foundation issued a technical amendment to incorporate IMLS into the regulation, after IMLS was established as a subdivision of the Foundation under the Museum and Library Services Act of 1996. 62 FR 66826 (Dec. 22, 1997). In 2003, the Foundation added language regarding “program or activity” to reflect the amendment of Title VI by the Civil Rights Restoration Act of 1987. 68 FR 51384 (Aug. 26, 2003). Thus, apart from the technical update of adding IMLS, and the required updating of the phrase “program or activity” pursuant to the Civil Rights Restoration Act, the Foundation has not substantively updated its Title VI regulations since 1973—over 50 years ago.

The Supreme Court has made clear that Title VI, 42 U.S.C. 2000d, does not prohibit facially neutral policies that result in disparate outcomes when there is no discriminatory intent. Rather, it prohibits only intentional discrimination.

In 1978, the Supreme Court concluded that Congress intended Title VI to prohibit “only those racial classifications that would violate the Equal Protection Clause” if committed by a government actor. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 287 (1978) (Powell, J., announcing the judgment of the Court); id. at 325, 328, 352-53 (Brennan, White, Marshall, and Blackmun, JJ., concurring in part and dissenting in part); see also Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 198 n.2 (2023) ( SFFA ). Shortly before Bakke' s Title VI holding, the Supreme Court held that the Equal Protection Clause prohibits only intentional discrimination and that “a law or other official act” that has a “racially disproportionate impact” alone does not violate that Clause. Washington v. Davis, 426 U.S. 229, 239 (1976); see also Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977) (“Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.”). Taken together, these Supreme Court cases establish that Title VI's statutory prohibition, like the Equal Protection Clause, extends only to intentional discrimination.

In 2001, the Supreme Court, in Alexander v. Sandoval, reaffirmed that settled understanding. 532 U.S. at 280 (“[I]t is . . . beyond dispute . . . that [Title VI] prohibits only intentional discrimination.”). In Sandoval, the Supreme Court held that private plaintiffs lacked a private right of action to enforce DOJ's “disparate-impact regulations.” Id. at 285-87. Though the Supreme Court had previously found a private cause of action to enforce Title VI's bar on intentional discrimination, id. at 279-80, that conclusion did not extend to enforcing DOJ's “disparate-impact regulations,” id. at 285. As the Supreme Court explained, it is “clear” that “the disparate-impact regulations do not simply apply” the statutory prohibition, as the regulations “forbid conduct that [Title VI] permits,” so it is equally “clear that the private right of action to enforce [Title VI] does not include a private right to enforce these regulations.” Id. Although the Supreme Court in Sandoval “assume[d],” without deciding, that DOJ's disparate-impact regulations were valid, the Court explained that the regulations are in “considerable tension” with the Supreme Court's Title VI precedents. Similarly, the regulations do not “authoritatively” construe Title VI because the regulations “forbid conduct”—namely, policies that unintentionally result in a disparate impact—that Title VI “permits.” Id. at 281-82, 284-85; see also id. at 286 n.6 (“[Title VI] permits the very behavior that the regulations forbid.”).

In 2023, the Court emphasized that “the equal protection clause requires equality of treatment before the law for all persons without regard to race or color.” SFFA, 600 U.S. at 205 (cleaned up). In reviewing the admissions policies of certain higher education institutions, the Court explained that the Constitution requires “eliminating all” racial discrimination. Id. at 206. To that end, it held that “[a]ny exception to the Constitution's demand for equal protection must survive a daunting two-step examination known in our cases as `strict scrutiny,' ” which requires that racial classifications “ `further compelling government interests' ” and be “ `narrowly tailored'—meaning `necessary'—to achieve [such] interest[s].” Id. at 206-07. Moreover, the Court explained that its “precedents have identified only two compelling interests that permit resort to race-based government action,” only one of which is relevant in general government administration: “remediating specific, identified instances of past discrimination that violated the Constitution or a statute.” Id. at 207. Finally, in 2024, the Supreme Court overruled Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). See Loper Bright Enters. v. Raimondo, 603 U.S. 369, 409-12 (2024). In reaching that result, the Supreme Court made clear that “statutes . . . have a single, best meaning” that is “ `fixed at the time of enactment.' ” Id. at 400 (quoting Wis. Cent. Ltd. v. United States, 585 U.S. 274, 284 (2018)). Thus, Title VI's bar on discrimination can have only one meaning. And under Supreme Court precedent, the single, best meaning of Title VI is that it “prohibits only intentional discrimination” and “permits” facially neutral policies that result in disparate outcomes when there is no discriminatory intent. Sandoval, 532 U.S. at 280, 286 n.6.

On April 23, 2025, President Trump issued Executive Order 14281. This Order restated the “bedrock principle of the United States . . . that all citizens are treated equally under the law.” 90 FR at 17537. The Order explained that this “principle guarantees equality of opportunity, not equal outcomes,” and “promises that people are treated as individuals, not components of a particular race or group.” Id.

The Order also explained that disparate-impact liability “endangers this foundational principle.” Id. Disparate-impact liability, the Order reasoned, “all but requires individuals and businesses to consider race and engage in racial balancing to avoid potentially crippling legal liability.” Id. As the Order explained, disparate-impact liability “not only undermines our national values but also runs contrary to equal protection under the law and, therefore, violates our Constitution.” Id.

The Order relayed that because of disparate-impact liability's problems, “[i]t is the policy of the United States to eliminate the use of disparate-impact liability in all contexts to the maximum degree possible to avoid violating the Constitution, Federal civil rights laws, and basic American ideals.” Id. The Order directed the Attorney General to, among other things, “initiate appropriate action to repeal or amend the implementing regulations for Title VI of the Civil Rights Act of 1964 for all agencies to the extent they contemplate disparate-impact liability.” Id. On December 10, 2025, DOJ amended its Title VI regulations to eliminate disparate-impact liability. 90 FR 57141 (Dec. 10, 2025). The Foundation agrees with DOJ's rationale provided in its final rule, and accordingly, this rule also revises the Foundation's Title VI regulations to effectuate the Order's policy and purpose.

In any event, the Foundation would have independently initiated steps toward modifying its Title VI regulation in alignment with Executive Order 14281. Even if the Order did not exist, in other words, the Foundation would have taken steps to adopt the policy to eliminate the use of disparate-impact liability under Title VI. The Order states, and the Foundation firmly agrees, that a “bedrock principle of the United States is that all citizens are treated equally under the law,” a principle that “encourages meritocracy and a colorblind society,” not race-, color-, or national-origin-based favoritism. 90 FR at 17537. And adherence to this principle, including in the issuance of grants, “is essential to creating opportunity, encouraging achievement, and sustaining the American Dream.” Id.

Imposing disparate-impact liability endangers these policy objectives. Disparate-impact liability also raises serious constitutional concerns, is in considerable tension with the single, best meaning of Title VI, creates confusion, increases the costs of compliance, and does not serve the public interest. After considering the relevant issues and factors and weighing the relevant considerations, the Foundation concludes that these reasons together support eliminating disparate-impact liability from the Foundation's Title VI regulations.

The Foundation's regulations at 45 CFR part 1110, entitled “Nondiscrimination in Federally Assisted Programs,” contain several provisions that prohibit conduct or activities causing unintentional disparate impact, without a statutory or constitutional basis for doing so. And in some instances, the regulations encourage or even require unlawful discrimination labeled as “reasonable action.” Section 1110.3(b)(2) is the current regulation's general disparate-impact prohibition, which states that a “recipient . . . may not . . . utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin.” 45 CFR 1110.3(b)(2). Beyond that general prohibition, section 1110.3(b)(3) addresses a Federal funding recipient's selection of the site or location of facilities and includes two references to “effect” that extend the scope of prohibited conduct to include conduct with unintentional disparate impact. Id. 1110.3(b)(3). Section 1110.3(b)(6) concerns the use of “reasonable action,” and provides that funding recipients may (and sometimes must) use race, color, or national origin to overcome unintentional disparate “consequences,” but does not expressly specify that the funding recipient must narrowly tailor such use to serve a compelling governmental interest, as is required to satisfy strict scrutiny. Id. 1110.3(b)(6). Finally, section 1110.3(c)(3) addresses prohibited discriminatory employment practices and extends beyond intentional discrimination to prohibiting conduct that “tends” to have a discriminatory effect. Id. 42.104(c)(2).

There are serious statutory and constitutional concerns with the Foundation's Title VI disparate-impact regulations. There are also serious policy concerns because the current regulations create confusion, undermine public confidence in the Nation's civil rights laws and the rule of law, and produce burdensome litigation and compliance costs.

There are serious statutory concerns as to whether Title VI authorizes the disparate-impact provisions of the current regulations. As the Supreme Court has made clear, Title VI prohibits “only intentional discrimination” and “permits” facially neutral policies that result in disparate outcomes when there is no discriminatory intent. Sandoval, 532 U.S. at 280, 286 n.6. That is the “single, best meaning” of Title VI. Loper Bright, 603 U.S. at 400. As summarized above, Sandoval calls into serious doubt the legality of the Foundation's “disparate-impact regulations.” 532 U.S. at 281-82, 284-85 (noting that DOJ's regulations, which the Foundation's regulations mirror, are in “considerable tension” with the Supreme Court's Title VI precedents); see also id. at 286 n.6 (“[Title VI] permits the very behavior that the regulations forbid.”). Although Sandoval resolved only the question of private enforceability, subsequent cases such as Loper Bright have made clear that the Foundation cannot extend Title VI beyond its single, best meaning. See 603 U.S. at 412-13 (holding that “courts must . . . ensur[e] that [an] agency acts within” its statutory authority). And even in the absence of Supreme Court precedent, the Foundation would have concluded that the best reading of Title VI is that it prohibits only intentional discrimination. Id.

Title VI authorizes agencies to promulgate regulations “to effectuate” the statute's prohibition of intentional discrimination. 42 U.S.C. 2000d-1. The current regulations' extension of prohibited conduct to include conduct with an unintentional disparate impact reaches a vastly broader range of conduct than the statute itself. This range is too broad to be considered a simple prophylactic measure aimed at preventing intentional discrimination. See Sandoval, 532 U.S. at 286 n.6 (“[Title VI] permits the very behavior that the regulations forbid.”). Thus, the disparate-impact regulations do not “effectuate” Title VI. 42 U.S.C. 2000d-1.

There are also serious concerns about whether the Foundation's Title VI regulations pass constitutional muster under the Equal Protection Clause. As the Supreme Court recently held in SFFA, “the Equal Protection Clause . . . applies without regard to any differences of race, of color, or of nationality—it is universal in its application” and the “guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color.” 600 U.S. at 206 (internal quotation marks omitted) (first quoting Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886), and then quoting Bakke, 438 U.S. at 289-90 (Powell, J.)). Despite the promises of the Equal Protection Clause, a funding recipient's risk of disparate-impact liability under the Foundation's regulations is triggered by unintentional disparate outcomes, which the recipient may not even have known about without investigation. To evaluate and avoid this risk, the funding recipient must incur investigatory costs, such as conducting an impact analysis, and is coerced to proactively consider race, color, and national origin, and potentially use such analysis to change the unintended disparate outcomes. In short, disparate-impact liability encourages and, in some cases, requires covered entities to engage in the intentional use of race and racial balancing to eliminate those disparate outcomes by treating certain racial groups differently from others—the exact conduct the Equal Protection Clause forbids. See id. This serious constitutional concern further confirms that the best reading of Title VI is that it prohibits only intentional discrimination and does not authorize Federal agencies to impose disparate-impact liability. See Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988) (“[W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.” (citing NLRB v. Catholic Bishop of Chi., 440 U.S. 490, 499-501, 504 (1979))).

This use of race, color, or national origin violates the Equal Protection Clause unless it survives review under the “daunting” strict-scrutiny standard. SFFA, 600 U.S. at 206; see also Free Speech Coal., Inc. v. Paxton, 145 S. Ct. 2291, 2310 (2025) (“Strict scrutiny—which requires a restriction to be the least restrictive means of achieving a compelling governmental interest—is `the most demanding test known to constitutional law.'” (quoting City of Boerne v. Flores, 521 U.S. 507, 534 (1997))). The use of race, color, or national origin necessitated by the disparate-impact provisions runs into serious issues with the requirement of narrow tailoring to achieve a compelling interest. SFFA, 600 U.S. at 206-07.

Similarly, the Foundation's “reasonable action” provision authorizes and sometimes requires the intentional use of race without requiring that this intentional use be narrowly tailored to serve a recognized compelling interest. Instead, it encourages intentional racial balancing “to remove or overcome the consequences of” unintended racial disparities. 45 CFR 1110.3(b)(6). Thus, for substantially the same reasons as above, the Foundation's “reasonable action” provision raises serious constitutional concerns.

For the reasons summarized above, there are serious statutory and constitutional concerns with the Foundation's disparate-impact regulations. But even if the regulations were legal, eliminating the potential constitutional concerns addressed above would independently justify amending the regulations. Cf. U.S. Tel. Ass'n v. FCC, 188 F.3d 521, 528 (D.C. Cir. 1999) (concluding it was not “arbitrary and capricious” to adopt a certain policy to “avoid[ ] raising a non-trivial constitutional question”). And even if the regulations did not raise serious constitutional concerns, eliminating the costs and confusion caused by the mismatch between the statute and the disparate-impact regulations would independently justify repealing the disparate impact regulations.

There are also serious policy concerns with the Title VI regulations' imposition of disparate-impact liability. While policy concerns with disparate-impact liability exist independent of Executive Order 14281, that Order sets forth many valid policy concerns with disparate-impact liability. As noted in section 1 of the Order, “on a practical level, disparate-impact liability has hindered businesses from making hiring and other employment decisions based on merit and skill, their needs, or the needs of their customers because of the specter that such a process might lead to disparate outcomes, and thus disparate-impact lawsuits. This has made it difficult, and in some cases impossible, for employers to use bona fide job-oriented evaluations when recruiting, which prevents job seekers from being paired with jobs to which their skills are most suited—in other words, it deprives them of opportunities for success.” 90 FR at 17537. Moreover, the legal concerns identified above have caused uncertainty and confusion for Federal funding recipients as to whether and when they need to comply with the disparate-impact regulations and when they can or must consider race, color, and national origin. As explained above, Sandoval casts substantial doubt on the validity of the disparate-impact regulations that many Federal departments and agencies have promulgated pursuant to Title VI. 532 U.S. at 280-82.

Additionally, in practice and as explained above, disparate-impact liability leads covered entities to engage in racial balancing even as Title VI forbids intentional racial discrimination. This tension tends to create confusion, undermine public confidence in the Nation's civil rights laws, and undermine public confidence in the rule of law itself, as the law seems to both forbid and require the same conduct.

These problems are amplified by the arbitrary nature of the racial and ethnic categories typically used to measure disparate effects, which, by virtue of their arbitrariness, typically lack a meaningful connection to a compelling interest. See, e.g., SFFA, 600 U.S. at 216-17 (explaining that the “[racial] categories” at issue were “themselves imprecise in many ways” and “the use of these opaque racial categories undermine[d], instead of promote[d], [their] goals”). This lack of clarity undermines the law's ability to encourage nondiscrimination. These policy concerns independently justify repealing disparate-impact regulations to eliminate confusion, remove the incentive for covered entities to engage in racial balancing, and maintain clarity and public confidence in the Nation's civil rights laws.

The Foundation's constituent agencies have considered the view that examining disparate effects can sometimes be useful in uncovering or deterring subtle intentional discrimination or intentional indifference to unnecessary and arbitrary barriers. But any alleged benefits are outweighed by the other issues and factors described above that the constituent agencies have considered. And in any event, the concern is mitigated by the fact that eliminating disparate-impact liability does not preclude the use of data on disparate outcomes to help prove intentional discrimination. Each of the Foundation's constituent agencies and private litigants may rely on such data as a potential indicator of intentional discrimination. This use of a statistical disparity to help establish, as an evidentiary matter, liability for intentional discrimination materially differs from using such a disparity to impose liability for an unintentional disparate impact.

The Foundation's constituent agencies considered adopting a version of this regulation that limits disparate-impact liability to claims involving certain categories of grantees, including grantees with a prior finding of noncompliance in operating an agency-funded program. The Foundation's constituent agencies decline to adopt that approach. Verifying such claims would be administratively untenable because it would require access to records the Foundation's constituent agencies do not retain for a sufficiently long period due to compliance with mandatory record retention regulations (or else require unreasonably long and costly document-retention policies), or would require the Foundation's constituent agencies to obtain records from other agencies to which they do not have regular access. The modification would also add another layer of administrative decision-making, creating additional work and delay between deserving claimants and the disposition of Title VI claims. In any event, that additional layer would not cure the absence of statutory authorization permitting Federal agencies to impose disparate impact liability.

Additionally, the constituent agencies have considered the potential reliance interests of funding recipients and others on the disparate-impact regulations. However, the Sandoval decision cast serious doubt on the continuing viability of these regulations more than 25 years ago. Since Sandoval, enforcement of Title VI disparate-impact regulations has been minimal and sporadic. Also, Executive Order 14281 directed all Federal agencies to “deprioritize enforcement of all statutes and regulations to the extent they include disparate-impact liability.” 90 FR at 17538. Accordingly, the constituent agencies' position is that any reliance interests should be minimal and do not outweigh legal and other policy concerns. Further, each constituent agency's concerns, whether considered cumulatively or separately, outweigh any reliance interests.

The Foundation's constituent agencies note that Sandoval has also led to a divergence between Title VI enforcement by private plaintiffs and enforcement by Federal departments and agencies. After Sandoval, private plaintiffs can enforce only Title VI's statutory prohibition on intentional discrimination, while Federal departments and agencies have continued to pursue disparate-impact liability. Repealing the disparate-impact regulations eliminates this incongruent enforcement.

Overall, after considering the relevant issues and factors and weighing the relevant considerations, the Foundation's constituent agencies have determined that, regardless of the legality of the Foundation's disparate-impact regulations, the above summarized policy concerns, whether viewed separately or cumulatively, independently justify the repeal of its disparate-impact regulations.

This rule's regulatory changes address the concerns regarding the statutory authority that the Supreme Court questioned in Sandoval and the other legal and policy concerns discussed above; harmonize the implementing regulations' scope with the conduct that Congress intended Title VI to prohibit; promote consistent enforcement of Title VI among private plaintiffs and Federal departments and agencies; and provide much needed clarity to the courts and Federal funding recipients and beneficiaries.

For the reasons summarized above, the Foundation's constituent agencies amend the following provisions in its Title VI implementing regulations that explain particular types of discrimination prohibited, located in 45 CFR part 1110.

The table below indicates the exact wording changes made by this rule. For each section indicated in the left column, the action described in the middle column is taken with respect to the text identified in the right column.

Section 1110.3(b)(2) is the current regulation's general prohibition of conduct with unintentional disparate impact. It imposes liability on Federal funding recipients who “utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination.” Because the only purpose of section 1110.3(b)(2) is to extend the scope of Title VI to reach conduct giving rise to unintentional disparate impact, this rule deletes this paragraph in its entirety. Thus, it amends the Foundation's Title VI implementing regulations to conform to the scope of coverage Congress intended when it enacted Title VI and to address the legal and policy concerns described in this document. This rule replaces paragraph (b)(2) with a placeholder to maintain the numbering accuracy of previous citations and other references to parts of this section.

Section 1110.3(b)(3) addresses a Federal funding recipient's or applicant's selection of the site or location of facilities. It provides that a funding recipient may not make selections with the “purpose or effect” of discriminating, or “with the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of” Title VI or the Foundation's implementing regulations. The paragraph's two references to “effect” extend its scope to conduct causing unintentional disparate impacts. This rule deletes both uses of “or effect” to conform paragraph (b)(3) more closely to the scope of coverage Congress intended when it enacted Title VI and to address the legal and policy concerns described in this document.

Section 1110.3(b)(6) pertains to “reasonable action” to overcome the consequences of certain conduct. The paragraph authorizes such action even in the absence of a finding of prior discrimination in a program “to remove or overcome the consequences of practices or impediments which have restricted the availability of, or participation in, the program or activity receiving Federal financial assistance, on the grounds of race, color, or national origin.” This provision points not to intentional discrimination, but rather to the unintentional “consequences of practices or impediments.” It accordingly encourages intentional racial classifications, racial preferences, and other race-based actions without specifying the compelling governmental interest and narrow tailoring that the Equal Protection Clause demands. This section has long been unlawful under an Equal Protection Clause analysis.

Paragraph (b)(6) also states that a recipient “has an obligation to take reasonable action to remove or overcome the consequences of the prior discriminatory practice or usage” where “previous discriminatory practice or usage tends, on the grounds of race, color, or national origin, to exclude individuals from participation in, to deny them the benefits of, or to subject them to discrimination.” This provision goes beyond the Equal Protection Clause, which, in limited circumstances permits, but does not mandate, a government to take narrowly tailored action to remedy the effects of its identified past discrimination. See, e.g., Bakke, 438 U.S. at 307 (Powell, J.). Even placing aside the mandatory language, this provision does not expressly require narrow tailoring to counter particular past discrimination, but rather “reasonable action to remove or overcome the consequences of the prior discriminatory practice or usage.” Accordingly, this provision promotes potentially illegal race, color, and national origin discrimination. Moreover, in some instances, it may even coerce recipients to consider and use racial preferences when the recipient does not want to. This is contrary to the goal of promoting and defending a culture of nondiscrimination and is destructive to the public's understanding of and faith in the Nation's civil rights laws. Therefore, this rule removes paragraph (b)(6).

Section 1110.3(c)(3) addresses prohibited discriminatory employment practices. Paragraph (c)(1) prohibits intentionally discriminatory employment practices in a program for which a primary objective of the Federal financial assistance that program receives is to provide employment. Paragraph (c)(3) extends the prohibition on discrimination to employment practices of the funding recipient even when “a primary objective of the Federal financial assistance is not to provide employment” if discrimination in the nonfunded “employment practices of the recipient or other persons subject to the regulation tends, on the grounds of race, color, or national origin, to exclude individuals from participation in, to deny them the benefits of, or to subject them to discrimination under any program to which this regulation applies.” This paragraph prohibits not only intentional discrimination but rather extends the prohibition to conduct that “tends” to have a discriminatory effect.

Moreover, paragraph (c)(3)'s extension to employment practices for which the Federal funding's primary objective is not to provide employment conflicts with the statutory limitation found in 42 U.S.C. 2000d-3. That section states that “[n]othing contained in [Title VI] shall be construed to authorize action under [Title VI] by any department or agency with respect to any employment practice of any employer, employment agency, or labor organization except where a primary objective of the Federal financial assistance is to provide employment.” 42 U.S.C. 2000d-3; see also Johnson v. Transp. Agency, Santa Clara Cnty., 480 U.S. 616, 627-28 n.6 (1987) (citing the statutory limitation and noting Congress's intent that Title VI not “impinge” on Title VII, which prohibits discriminatory employment practices). This rule deletes paragraph (c)(3) to amend the regulation so that it more closely adheres to the scope of conduct Congress prohibited under Title VI and to address the legal and policy concerns described in this document.

The “Illustrative applications” under section 1110.5 consist of examples that illustrate the application of the regulation to some of the activities for which Federal financial assistance is provided by the Foundation's constituent agencies. This rule deletes paragraph (e) because it is an illustrative example of section 1110.3(b)(2), which is being deleted for the reasons described above. Likewise, paragraphs (f) and (g) illustrate the application of section 1110.3(b)(6), which is also being deleted.

The Foundation's constituent agencies' position is that each of this rule's amendments serves a vital, related, but distinct purpose. The constituent agencies also confirm that each of the amendments is intended to operate independently of one other and that the potential invalidity of one amendment does not affect the validity of other amendments. The constituent agencies adopt any of the amendments independent and regardless of the invalidity of a separate amendment.

The Foundation's constituent agencies issue this final rule without prior public notice and comment or a delayed effective date pursuant to the exception in the Administrative Procedure Act (APA) for rules “relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.” 5 U.S.C. 553(a)(2).

Title VI concerns nondiscrimination conditions on the receipt of Federal financial assistance, and more particularly on the receipt of Federal “[g]rants and loans,” “property,” “personnel” and “[a]ny Federal agreement, arrangement, or other contract which has as one of its purposes the provision of assistance.” 45 CFR 1110.13(f); see also id. 1110.4 (requiring funding recipient sign contractual assurance of compliance with Title VI); Cummings v. Premier Rehab Keller, P.L.L.C., 596 U.S. 212, 217-18 (2022) (observing that Congress enacted Title VI “[p]ursuant to its authority to `fix the terms on which it shall disburse federal money'” (internal citation omitted)). Cf. Education Programs or Activities Receiving or Benefitting from Federal Financial Assistance, 82 FR 46655 (Oct. 6, 2017) (invoking the section 553(a)(2) exception to amend Title IX regulations to “promote consistency in the enforcement of Title IX for [the Department of Agriculture] financial assistance recipients”); Preserving Community and Neighborhood Choice, 85 FR 47899 (Aug. 7, 2020) (invoking the exception to repeal a Housing and Urban Development rule regarding Federal grantees); Participation by Minority Business Enterprise in Department of Transportation Programs, 53 FR 18285 (May 23, 1988) (invoking the exception to expand coverage of a Department of Transportation regulation regarding the Federal Aviation Administration's airport financial assistance program); Nondiscrimination on the Basis of Handicap in Federally Assisted Programs—Suspension of Guidelines with Respect to Mass Transportation, 46 FR 40687 (Aug. 11, 1981) (invoking the exception to suspend DOJ guidelines prohibiting disability discrimination in transportation programs and activities receiving Federal financial assistance).

Invoking 5 U.S.C. 553(a)(2) is consistent with the definition for Federal financial assistance provided by the U.S. Office for Management and Budget (OMB) in 2 CFR 200.1, which defines Federal financial assistance with the same categories as the APA's exception for rules “relating to agency management or personnel or to public property, loans, grants, benefits, or contracts,” 5 U.S.C. 553(a)(2). With potentially limited exceptions not applicable to the Foundation's constituent agencies, all forms of Federal financial assistance set forth under 2 CFR 200.1 that the constituent agencies administer fall under the “public property, loans, grants, benefits, or contracts” exception. Thus, the Foundation's constituent agencies issue this final rule without prior public notice and comment or a delayed effective date under 5 U.S.C. 553(a)(2).

The Foundation's constituent agencies have determined that this rulemaking is a “significant regulatory action” under section 3(f) of Executive Order 12866, 58 FR 51735, 51738 (Sep. 30, 1993), but not an “economically significant” action under section 3(f)(1). Accordingly, this rule has been submitted to OMB for review.

This regulation has been drafted and reviewed in accordance with section 1(b) of Executive Order 12866, id. at 51735, and section 1(b) of Executive Order 13563, 76 FR 3821, 3821 (Jan. 18, 2011), which supplements and reaffirms the principles of Executive Order 12866. These Executive Orders 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. 58 FR at 51735; 76 FR at 3821. Executive Order 13563 also recognizes that some benefits and costs are difficult to quantify and provides that, where appropriate and permitted by law, agencies may consider and discuss qualitative values that are difficult or impossible to quantify. Id.

As explained in the preamble, the regulatory modifications in this rule conform the Foundation's regulations to Executive Order 14281; address serious concerns regarding Title VI disparate-impact regulations that the Supreme Court raised in Sandoval; harmonize the implementing regulations' scope with the scope of conduct that Congress intended Title VI to prohibit; promote consistency in enforcement among private plaintiffs and Federal departments and agencies; and provide much needed clarity to courts and Federal funding recipients and beneficiaries regarding the scope of the Foundation's Title VI regulations. Indeed, with respect to section 1110.3(c) of the Foundation's Title VI regulations, the changes made to this rule are necessary to bring the regulations into compliance with 42 U.S.C. 2000d-3. In short, this rule is necessary to conform the Foundation's current regulations to existing statutory law, as interpreted by the Supreme Court.

The costs and benefits of this rule are difficult to quantify due to data limitations. Although the figures below do not represent the monetary impact of the rule, the NEA issued approximately 14,950 separate awards totaling approximately $942 million from fiscal year 2020 through fiscal year 2024, and the NEH issued approximately 4,517 separate awards totaling approximately $920 million during this same period. IMLS issued approximately 2,346 separate awards totaling approximately $1.03 billion from fiscal year 2022 through fiscal year 2025. During the period from fiscal year 2020 through fiscal year 2024, the Foundation's constituent agencies did not conduct any Title VI-related active investigations or compliance reviews regarding these funds and their recipients that centered on disparate impact alone. For enforcement actions that relate to both intentional discrimination and conduct having an unintentional disparate impact, the constituent agencies do not track and cannot reliably quantify the costs attributable to the varying disparate-impact portions of enforcement actions. Also, the existence of a disparate impact is sometimes a factor that may be considered in determining whether discrimination was intentional; this further impedes monetizing costs and benefits specific to disparate-impact enforcement. Therefore, the overall cost effect on the constituent agencies is difficult to quantify, although this rule should decrease the constituent agencies' enforcement costs. This rule also should have the benefit of bringing the constituent agencies' conduct in line with the law, which is also difficult to quantify. Similarly, the constituent agencies are unable to quantify how funding recipients will respond to the regulatory changes. But this deregulatory action should result in greater flexibility and lower compliance costs for recipients.

The Foundation's constituent agencies recognize that a funding recipient may receive Federal funds from sources other than, and in addition to, the constituent agencies. Regardless, the constituent agencies do not envision that this rule will appreciably increase administrative costs or compliance costs for funding recipients that also must adhere to the regulations of another department or agency. This deregulatory action does not create any new obligations for constituent agencies' funding recipients. On the contrary, eliminating disparate-impact liability from the regulations eliminates a source of regulatory confusion, narrows and makes more specific the conduct prohibited, and thus lessens the costs of compliance and potential liability. Moreover, recipients that receive funds for the same program or activity from more than one Federal entity already enter into separate contractual assurances with each funding entity. See, e.g., 45 CFR 1110.4 (the Foundation), 10 CFR 1040.4 (Department of Energy); 45 CFR 605.5 (National Science Foundation); 45 CFR 80.4 (Department of Health and Human Services).

Such assurances already impose varying requirements that each Federal funding source deems necessary. Thus, funding recipients will continue to be held to the most stringent contractual assurance and regulation. And in any event, the Foundation notes that other agencies are currently amending their regulations to align with the changes made in this rule, so the Foundation anticipates that there will be little, if any, disparity in Federal requirements regarding disparate-impact liability going forward.

Based on the analysis of the practical qualitative costs and benefits noted above, the Foundation's position is that this rule is consistent with the principles of Executive Orders 12866 and 13563, including the requirements that, to the extent permitted by law, an agency adopt a regulation only upon a reasoned determination that its benefits justify its costs and choose a regulatory approach that maximizes net benefits. See 58 FR at 51735; 76 FR at 3821.

Executive Order 14192 requires an agency, unless prohibited by law, to identify at least ten existing regulations to be repealed when the agency publicly promulgates a new regulation. 90 FR 9065, 9065 (Jan. 31, 2025). In furtherance of this requirement, section 3(c) of the Order requires that “any new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least 10 prior regulations.” Id. By revising the Foundation's current Title VI regulations, which extend prohibited conduct to include unintentional disparate impacts and thus expand the scope of those regulations to a vastly broader range of conduct than the statute prohibits, this rule eliminates unnecessary regulation. Accordingly, the Foundation's constituent agencies consider this rule to be a deregulatory action under Executive Order 14192.

Executive Order 14294 requires agencies promulgating regulations with criminal regulatory offenses potentially subject to criminal enforcement to “explicitly describe the conduct subject to criminal enforcement, the authorizing statutes, and the mens rea standard applicable to” each element of those offenses. 90 FR 20363, 20363 (May 9, 2025). This rule does not impose a criminal regulatory penalty and is thus exempt from Executive Order 14294's requirements.

This rule will not have a substantial, direct effect on the relationship between the national government and the States, on distribution of power and responsibilities among various levels of government, or on States' policymaking discretion. States that choose to receive Federal financial assistance from the Foundation's constituent agencies do so voluntarily and agree to comply with relevant statutory requirements as a condition of receiving such funding. This rule does not subject States or any other funding recipients or beneficiaries to any new obligations. Rather, this rule amends and clarifies existing regulations that are required by statute. Therefore, in accordance with section 6 of Executive Order 13132, 64 FR 43255, 43257-58 (Aug. 4, 1999), the constituent agencies have determined that these amendments do not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

This rule meets the applicable standards set forth in sections 3(a) and (b)(2) of Executive Order 12988 to specify provisions in clear language. See 61 FR 4729, 4731-32 (Feb. 5, 1996). Pursuant to section 3(b)(1)(I) of the Executive Order, id. at 4731, nothing in this or any previous rule (or in any administrative policy, directive, ruling, notice, guideline, guidance, or writing) directly relating to the program that is the subject of this rule is intended to create any legal or procedural rights enforceable against the United States.

Pursuant to Executive Order 12250, DOJ has the responsibility to “review . . . proposed rules . . . of the Executive agencies” implementing nondiscrimination statutes such as Title VI “in order to identify those which are inadequate, unclear or unnecessarily inconsistent.” 45 FR at 72995. DOJ has reviewed and approved this rule.

This rule does not require a regulatory flexibility analysis under the Regulatory Flexibility Act (RFA), 5 U.S.C. 603, 604, because, for the reasons described above, no notice of proposed rulemaking is required under 5 U.S.C. 553. See Or. Trollers Ass'n v. Gutierrez, 452 F.3d 1104, 1123-24 (9th Cir. 2006) (noting that the RFA does not apply when an agency validly invokes an exception to the public comment requirements of 5 U.S.C. 553). Further, the Foundation's constituent agencies, in accordance with 5 U.S.C. 605(b), have reviewed these regulations and certify that the rule's changes will not have a significant economic impact on a substantial number of small entities because these regulatory changes do not impose any new substantive obligations on Federal funding recipients. Rather, the rule amends and clarifies existing regulations that are required by Title VI. Also, the rule brings constituent agencies into compliance with the Equal Protection Clause and harmonizes the scope of the current regulations to conform to the scope of Title VI, which does not prohibit conduct giving rise to unintentional disparate impact. All Federal funding recipients have been and will continue to be bound by existing standards that will remain in place after this rule is effective.

The Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1501 et seq., requires agencies to prepare several analytic statements before proposing any rule that may result in annual expenditures of $100 million by State, local, or Tribal governments, or the private sector. 2 U.S.C. 1532(a). However, UMRA also excludes from its coverage any proposed or final Federal regulation that “establishes or enforces any statutory rights that prohibit discrimination on the basis of race, color, religion, sex, national origin, age, handicap, or disability.” 2 U.S.C. 1503(2). Accordingly, this rule is not subject to the provisions of UMRA.

The Office of Information and Regulatory Affairs has determined that this rule is not a “major rule” as defined by the Congressional Review Act, 5 U.S.C. 804(2).

Pursuant to the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., agencies must consider whether a rule will create additional burdens related to recordkeeping, paperwork, or information collection. This rule will not impose additional reporting or recordkeeping requirements under the Act.

Accordingly, for the reasons set forth above, the NEA (for itself and on behalf of FCAH, for which NEA provides legal counsel), NEH, and IMLS amend part 1110 of title 45 of the Code of Federal Regulations as follows:

These regulations, promulgated under the authority of the Marine Mammal Protection Act (MMPA) (16 U.S.C. 1361 et seq. ), establish a framework for NMFS to authorize the take of marine mammals incidental to construction activities associated with the DERP project in Hood Canal, Washington.

The MMPA prohibits the “take” of marine mammals, with certain exceptions. Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs the Secretary of Commerce, as delegated to NMFS, to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region for up to 5 years if, after notice and public comment, the agency makes certain findings and promulgates regulations that set forth permissible methods of taking pursuant to that activity and other means of effecting the “least practicable adverse impact” on the affected species or stocks and their habitat (see Mitigation section), as well as monitoring and reporting requirements.

Following is a summary of the major provisions of this rule regarding USACE's activities. These provisions include measures requiring:

• Performance of construction work only during daylight hours when visual monitoring of marine mammals can be implemented;

• Gradually increasing time periods dedicated to construction activities each day throughout the day to reduce the risk of potentially startling marine mammals;

• Conducting 30 minutes of pre- and post-activity monitoring associated with pile installation or removal activities;

• Establishment and monitoring by protected species observers (PSOs) of a 300-meter observation zone for all construction activities;

• Halting construction activity: (1) if a marine mammal comes within 10 meters of operations of heavy equipment; or (2) a pup less than one week old comes within 20 meters of where heavy machinery is operating; and

• Not initiating construction activities within 300 meters of a mother-pup pair that is hauled out, or within 100 meters of a mother-pup pair in the water.

Through adaptive management, the regulations will allow NMFS to modify ( e.g., remove, revise, or add to) the existing mitigation, monitoring, or reporting measures summarized above and required by the LOA.

The MMPA prohibits the “take” of marine mammals, with certain exceptions. Section 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq. ) direct the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are promulgated or an incidental harassment authorization is issued.

Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). If such findings are made, NMFS must prescribe permissible methods of taking; other “means of effecting the least practicable adverse impact” on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stocks for taking for certain subsistence uses (referred to in shorthand as “mitigation”); and requirements pertaining to the monitoring and reporting of the takings. The definitions of all applicable MMPA statutory terms cited above are included in the relevant sections below and can be found in section 3 of the MMPA (16 U.S.C. 1362) and NMFS regulations at 50 CFR 216.103.

On April 17, 2024, NMFS received a request from the USACE for regulations and a subsequent LOA to take marine mammals incidental to construction activities related to the DERP in Washington. A revised application was submitted on September 27, 2024. We determined the application was adequate and complete on November 19, 2024. On November 25, 2024, we published a notice of receipt of the USACE's application in the Federal Register , requesting comments and information related to the request for 30 days (89 FR 92907). We received no public comments. On August 15, 2025, we published the proposed rule in the Federal Register (90 FR 39346) and requested comments and information from the public. NMFS reviewed the submitted material and considered it for promulgation of these regulations.

A detailed description of the USACE's planned activities are provided in the proposed rule (90 FR 39346, August 15, 2025). Since publication of the proposed rule, the USACEC has not made any modifications to their specified activities; therefore, we refer the reader to the proposed rule for a detailed description of the specified activities. Mitigation, monitoring, and reporting measures proposed by the USACE and included in this final rule are also described in detail in the proposed rule and summarized later in this document (please see Mitigation and Monitoring and Reporting). Note that the effective dates of the regulations and LOA in the proposed rule (90 FR 39346) were listed as July 30, 2026, through July 29, 2031.

The project has been delayed by one year due to the inability of the USACE to secure funding during the 2026 budget cycle. Therefore, the applicant requested new effective dates of July 9, 2027, through July 8, 2032. These new effective dates have been authorized by NMFS. The delay of the project by one year (2026 to 2027) and the change in the effective start date by several weeks (July 30 compared to July 9) will not affect any additional species or have any impact on the life cycle of harbor seals. The one-year delay and change of effective start dates during Year 1 of the LOA is not expected to affect our analysis in any way. The species affected, number of animals authorized for take, and mitigation and monitoring requirement remain unchanged.

Additional details on the specified activities are available in the proposed rule (90 FR 39346, August 15, 2025).

The specified geographic region is Hood Canal in Puget Sound. Details regarding this area can be found in the proposed rule (90 FR 39346, August 15, 2025).

During the 30-day comment period, we received a single comment letter from a member of the public that contained three separate comments. NMFS has reviewed and considered all relevant comments received on the proposed rule and issuance of the LOA. All substantive, relevant comments and our responses are described below.

Comment 1: The commenter wrote that construction activities could negatively impact marine mammals and that even a “small number” of takes could lead to disruptions in feeding, breeding, and migratory patterns, which could have lasting consequences for the population.

Response: Section 101(a)(5)(A) of the MMPA requires NMFS to make a determination that the take incidental to a “specified activity” will have a negligible impact on the affected species or stocks of marine mammals. NMFS' implementing regulations 50 CFR 216.104(a)(1) require applicants to include in their request a detailed description of the specified activity or class of activities that can be expected to result in incidental taking of marine mammals. NMFS has defined negligible impact as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival ( i.e., population-level effects). An estimate of the number of takes alone is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be “taken” through harassment, NMFS considers other factors, such as the likely nature of any impacts or responses ( e.g., intensity, duration), the context of any impacts or responses ( e.g., critical reproductive time or location, foraging impacts affecting energetics), as well as effects on habitat, and the likely effectiveness of the mitigation. We also assess the number, intensity, and context of estimated takes by evaluating this information relative to population status. In this instance, NMFS has determined that the USACE's planned activities will have a negligible impact on harbor seals in the project area.

NMFS is also required to make a small numbers determination. NMFS explains the concept of “small numbers” in recognition that there could also be quantities of individuals taken that would correspond with “medium” and “large” numbers. As such, for an individual incidental take authorization, NMFS considers that one-third of the most appropriate population abundance number—as compared with the assumed number of individuals taken—is an appropriate limit with regard to “small numbers.” This relative approach is consistent with relevant case law. See Center for Biological Diversity v. Salazar , 695 F.3d 893, 907 (9th Cir. 2012) (holding that the U.S. Fish and Wildlife Service reasonably interpreted “small numbers” by analyzing take in relative or proportional terms). As noted above, there is no biological significance associated with “small numbers” and, as such, NMFS appropriately does not consider “conservation status” or other issues related to the status of a species or stock in making its small numbers finding. Instead, these concepts are considered as part of the negligible impact analysis described previously. The USACE requested, and NMFS has authorized, incidental take that amounts to no more than 14.3 percent of the Washington Inland Hood Canal stock of harbor seals, which is less than one-third of the stock's population abundance.

Comment 2: The commenter stated that the five-year period of incidental takes allowed under an LOA in such a sensitive area raises concerns about the cumulative impact on marine mammal populations. They stated that the risk of compounding negative effects over time—especially in a confined area like Hood Canal—demands a more cautious, conservative approach to project approval, as the ecological consequences of such disruptions may not become evident until it is too late to reverse the damage.

Response: Neither the MMPA nor NMFS' codified implementing regulations require consideration of other unrelated activities and their impacts on marine mammal populations. The preamble for NMFS' implementing regulations (54 FR 40338, September 29, 1989) states in response to comments that the impacts from other past and ongoing anthropogenic activities are to be incorporated into the negligible impact analysis via their impacts on the baseline. Consistent with that direction, NMFS has factored into its negligible impact analysis the impacts of other past and ongoing anthropogenic activities via their impacts on the baseline ( e.g., as reflected in the density, distribution and status of the species, population size and growth rate, and other relevant stressors). The 1989 final rule for the MMPA implementing regulations also addressed public comments regarding cumulative effects from future, unrelated activities. There, NMFS stated that such effects are not considered in making findings under MMPA section 101(a)(5) concerning negligible impact.

Comment 3: The commenter stated that an incidental take authorization may overlook the availability of alternatives that could prevent the need for any take of marine mammals and should be designed in such a way that minimizes its impact on wildlife and prioritizes the health of marine ecosystems without resorting to take authorizations. The goal should be to avoid take altogether, not merely to manage or mitigate it after the fact. The commenter further asserted that the precautionary principle demands that we prioritize the protection of vulnerable marine species, especially in ecologically sensitive areas like Hood Canal.

Response: Neither the MMPA nor NMFS' implementing regulations include discussion or requirements related to a “precautionary principle.” NMFS must process requests for incidental take regulations in a manner consistent with the requirements of section 101(a)(5)(A) of the MMPA, which establishes specific criteria for when incidental take must be authorized. NMFS is not required under the MMPA to avoid take altogether. As described above, NMFS has determined that the planned activities will have a negligible impact on affected species or stocks. Furthermore, NMFS has not overlooked the availability of alternatives. As required under the MMPA, NMFS has prescribed the permissible methods of taking and other “means of effecting the least practicable adverse impact” on the affected species or stocks and their habitat.

The USACE would be unable to conduct their planned construction activities without being in violation of the MMPA if all incidental take of marine mammals was prohibited.

The Level 2 Reaction Code in table 4 of this notice has been revised to include the following language: “Movements in response to the source of disturbance, ranging from short withdrawals at least twice the animal's body length to longer retreats, or if already moving a change of direction of greater than 90 degrees.” The text has been updated from that in the proposed rule to match the most recent standardized language that is being utilized across all incidental take authorizations that incorporate the Marine Mammal Reaction Code. The Marine Mammal Reaction Code is used to classify the response of an animal to external stimuli. There are no substantive changes accompanying the language update.

An incorrect value of 13.1 percent of the percentage of stock taken was listed in the Small Numbers section of the proposed rule (90 FR 39346). We are making a technical correction to revise this value to 14.3 percent in the Small Numbers section of this notice and in table 3.

The effective dates of the regulations and LOA in the proposed rule (90 FR 39346) were listed as July 30, 2026, through July 29, 2031. Because the project has been delayed by one year, we changed the effective dates to July 9, 2027, through July 8, 2032. Since the project was delayed for one year, table 3 in this notice, Authorized Takes by Level B Harassment Annually, covers the years 2027-2030 while table 3 in the proposed notice covered the years 2026 through 2029 (90 FR 39346).

Under the Monitoring and Reporting section of the proposed rule (90 FR 39346), language pertaining to the reporting of dead or injured animals was accidentally omitted. The appropriate language has been included in the Monitoring and Reporting section and regulations in this final rule. This is standard language included in all incidental take authorizations where there is the possibility of observing dead or injured animals and was inadvertently omitted from the proposed rule.

A single species of marine mammal may be taken by harassment incidental to the USACE's specified activities. A complete description of marine mammals status and trends, life history, habitat use, and threats is included in the USACE's application and NMFS' proposed rule (90 FR 39346). NMFS is not aware of any new relevant information since publication of the proposed rule. Please refer to the proposed rule for detailed descriptions of marine mammals in the project area.

Table 1 lists all species or stocks for which take is expected and has been authorized by NMFS for this activity and summarizes information related to the population or stock, including regulatory status under the MMPA and Endangered Species Act (ESA) and potential biological removal (PBR), where known. PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS' stock assessment reports). All values presented in table 1 are the most recent available at the time of publication (available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments ).

The effects of visual and acoustic stimuli generated by the presence and operation of assorted DERP construction equipment as well as the presence of personnel, has the potential to cause Level B harassment of pinnipeds in the DERP project area. The proposed rule included a discussion of the effects of these stimuli from the planned activities on marine mammals and their habitat (90 FR 39346). There is no newly available relevant information that would change our analyses or the results thereof.

This section provides an estimate of the number of incidental takes authorized through the LOA, which will inform NMFS' consideration of “small numbers,” the negligible impact determinations, and impacts on subsistence uses.

Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, section 3(18) of the MMPA (16 U.S.C. 1362(18)) defines “harassment” as any act of pursuit, torment, or annoyance, which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).

Authorized takes would be by Level B harassment only, in the form of behavioral reactions for individual marine mammals resulting from exposure to visual or acoustic disturbance associated with various construction equipment and personnel or protected species observers (PSOs). Based on the nature of the activity, Level A harassment is neither anticipated nor authorized.

As described previously, no serious injury or mortality is anticipated or authorized for this activity. Below we describe how the take numbers were estimated.

There is very limited potential for impacts from underwater noise to result in harassment of pinnipeds. As noted previously, nearly all construction would be land-based. Pile driving within a wetted channel is only planned at a single location among the river channels and other permanently inundated areas in the project area. A vibratory driver will be used to remove bridge piers within the wetted river channel during the demolition of the existing north Highway 101 bridge (see figure 12 in the USACE's application). The USACE, in consultation with NMFS, concluded that the meandering path of the river at this location will adequately prevent direct propagation of underwater noise to the nearest haulout site and, while it is possible that underwater noise from pile-driving could potentially result in take, it is not considered likely and will be adequately addressed through our consideration of the effects of other, more likely causes of disturbance to seals.

All other vibratory and impact pile driving will occur on solid ground and will either occur during low tide or will be isolated from water using the existing Highway 101 causeway, cofferdams, or aquadams, thereby dampening propagation of sound through the substrate. For in-air sounds, NMFS has established a threshold of received levels above 90 dB re 20 μPa (rms) that could result in behavioral harassment (Level B harassment) of harbor seals. The actual measured in-air Lmax (dBA) at 50 feet (15.24 m) for vibratory and impact pile drivers is 101 dB (FHWA 2017). Noise attenuates as the distance from the source of the noise increases. A general equation shows noise propagation loss as 7.5 dB for each doubling of distance in areas where landscape features and vegetation exist (WSDOT 2020). Additionally, the following equation can be used to determine construction noise levels at a specific distance from the source (WSDOT 2020):

Lmax = the Construction Lmax at 50 feet (15.24 m)−25 * Log(D/Do). In this equation, Lmax = the highest A-weighted sound level occurring during a noise event during the time that noise is being measured; 50 feet (15.24 m) = the reference measurement distance; and D = the distance from the noise source.

Do = the reference measurement distance (50 feet (15.24 m) in this case). Using this equation, a 101 dB vibratory or impact pile driver will attenuate to 90 dB after 54 m (177 ft). The nearest vibratory pile driving site in the project area is about 265 m (870 ft) from known harbor seal haulout sites at the Duckabush River estuary. Therefore, Level B harassment from airborne noise could only occur if a seal left their haulout site and proceeded to within 54 m (177 ft) of an active pile driving site.

In this section we provide information about the occurrence of marine mammals, including abundance or other relevant information which will inform the take calculations.

WDFW conducts regular aerial surveys of hauled out harbor seals in the Hood Canal, typically restricting monitoring to the peak of the pupping period and the window two hours before and after high tides to maximize the number of individuals on land. The USACE utilized unpublished WDFW data from 2021-2023 (USACE, 2024) as well as aerial survey information of hauled out harbor seals at Duckabush River in 2013 and 2014 (Jeffries et al. 2014) to estimate harbor seal abundance. Table 2 summarizes the results from both surveys.

From 2021-2023, an average of 86 seals hauled out at the Duckabush River estuary during the pupping season, with a maximum daily count of 130 seals. Harbor seal counts during the molting season peaked at 23 per day although data during this period is limited. Available count data outside of the critical life history periods of pupping and molting season is also limited but indicated scarce usage of Duckabush River estuary haulout sites during the daytime for this period.

Here, we describe how the information provided above is synthesized to produce a quantitative estimate of the take that is reasonably likely to occur and which will be authorized by NMFS.

Since there is no previous data on how harbor seals react to construction activities at the Duckabush River estuary, take rates from an analogous project were utilized to estimate take. The Elkhorn Slough Tidal Marsh Restoration Project in Monterey County, California is a similar wetland restoration project involving land-based construction near harbor seal haulout sites (CDFW 2021). NMFS has issued IHAs for all three phases of this project, all authorizing take by Level B harassment of harbor seals resulting from similar disturbances as considered here, including the use of haul trucks, dozers, backhoes, loaders, and excavators. The objective of both projects is to restore tidal marshes that have been altered by past land use practices. The Elkhorn Slough project is in the process of restoring 147 wetland acres while the DMMP project will restore 38 acres. Impacts from both projects include the potential for Level B harassment of harbor seals by visual disturbance and in-air noise.

Due to the limited harbor seal survey data at the Duckabush River estuary, a basic model was used to estimate seal counts throughout the year. Using the survey data from table 3, it was assumed that there is an increase or decrease in the number of seals, as defined by use of a linear function (instead of a block function). This means that every day of the year has a unique number of seals based on a linear relationship between a specific date on which a certain number of seals were actually recorded and the next specific date on which seals were recorded. For example, in table 2, there were 99 total seals (pups and adults) recorded on August 27, while 130 total seals were recorded on September 21. Using a linear relationship, it was assumed that 100.24 seals were observed on August 28 (one day after the date of recording—August 27 with 99 seals) observation, while 128.76 seals were observed on September 20 (one day before the next actual date of recording—September 20 with 130 seals). This methodology allows each day of the year to have a unique number of assumed seals present. The USACE developed a detailed project schedule which identified the number of workdays expected to occur for each year of the planned activity, ranging from a minimum of 111 days in 2026 to a maximum of 262 days in 2029. The USACE further identified the specific dates of each year that work is planned. The sum of the number of observed seals associated with each specified work date was then calculated for each year of the authorization.

Monitoring reports from the Elkhorn Slough Tidal Marsh Restoration Project showed that nine percent of harbor seals present were recorded as takes in Phase I of the Elkhorn Slough Tidal Marsh Restoration Project while 0.7 percent were recorded as takes in Phase II. Monitoring data from Phase III of the project is not available, so the conservative assumption of nine percent take rate were used to estimate realized take. The sum of the number of assumed seals present calculated for each year, as described previously, was then multiplied by nine percent to provide the calculated annual take estimates shown in table 3.

To inform both the negligible impact analysis and the small numbers determination, NMFS assesses the maximum number of takes of marine mammals that could occur within any given year during the effective LOA period. In this calculation, the maximum estimated number of Level B harassment takes in any one year (480 in 2027) is used to yield the highest number of estimated take that could occur in any year (table 3). Table 3 also depicts the number of takes requested by the USACE and authorized by NMFS relative to the abundance of the Hood Canal stock.

In order to issue an LOA under section 101(a)(5)(A) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to the activity, and other means of effecting the least practicable adverse impact on the species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stock for taking for certain subsistence uses (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting the activity or other means of effecting the least practicable adverse impact upon the affected species or stocks, and their habitat (50 CFR 216.104(a)(11)).

In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, NMFS considers two primary factors:

(1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned), the likelihood of effective implementation (probability implemented as planned); and

(2) The practicability of the measures for applicant implementation, which may consider such things as cost and impact on operations.

The mitigation measures described in the following sections will apply to the USACE construction activities.

The USACE shall conduct training between supervisors and crews, the PSO team, and relevant USACE staff prior to the start of DERP construction so that responsibilities, communication procedures, monitoring protocols, and operational procedures are clearly understood. If new construction personnel are added to the project, the contractor shall ensure that the personnel receive the mandatory training before starting work.

Required monitoring must be conducted by dedicated, trained, NMFS-approved PSO(s). PSOs shall establish and monitor a 300-meter zone around all construction activities. A PSO will be present every day when construction activities occur in or near the DERP area. A 30-minute pre-clearance observation period will occur prior to the start of construction activities. Construction may not start until the work area is cleared by the PSOs. Monitoring will occur until 30 minutes after construction is complete. One or more PSOs will be stationed at location(s) offering the best view of four haulout sites and the project area as described in the USACE's marine mammal monitoring plan (MMMP).

If environmental conditions deteriorate such that marine mammals within the entire shutdown zone (10 m) will not be visible ( e.g., fog, heavy rain), construction must be delayed until the PSO is confident marine mammals within the shutdown zone could be detected.

A 30-minute pre-clearance observation period must occur prior to the start of ramp-up and construction activities. The USACE must adhere to the following pre-clearance and ramp-up requirements: (i) Construction activities must not be initiated if any marine mammal is within 10 m of planned operations. If a marine mammal is observed within 10 m of planned operations during the 30-minute pre-clearance period, ramp-up must not begin until the animal(s) has been observed exiting the zones or until an additional time period has elapsed with no further sightings; and (ii) Construction activities may not be initiated within 100 meters of a mother-pup pair in the water.

To reduce the risk of potentially startling marine mammals with a sudden intensive sound, the contractor will ramp-up construction activities gradually each day by moving around the project area and starting equipment one at a time.

For heavy machinery work, if a marine mammal comes within 10 meters of such operations, operations must cease work or will not be initiated until the marine mammal has moved outside the 10-meter buffer. During pupping season (August 1-October 31) construction activities may not be initiated: (1) Within 300 meters of a mom/pup pair that is hauled out, or (2) within 100 meters of a mom/pup pair in the water. If a pup less than 1 week old (neonate) comes within 20 meters of where heavy machinery is working, construction activities in that area must be shut down or delayed until the pup has left the area.

Activities must cease if a marine mammal species for which take was not authorized, or a species for which authorization was granted but the authorized number of takes have been met, is observed by PSOs approaching or within the Level B harassment zone. Activities must not resume until the animal is confirmed to have left the area.

NMFS has determined that the mitigation measures contained within this final rule will provide the means of effecting the least practicable adverse impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.

In order to issue an LOA for an activity, section 101(a)(5)(A) of the MMPA states that NMFS must set forth requirements pertaining to the monitoring and reporting of such taking. The MMPA implementing regulations at 50 CFR 216.104(a)(13) require that requests for authorizations include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present while conducting the activities. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring.

Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following:

• Occurrence of marine mammal species or stocks in the area in which take is anticipated ( e.g., presence, abundance, distribution, density);

• Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) action or environment ( e.g., source characterization, propagation, ambient noise); (2) affected species ( e.g., life history, dive patterns); (3) co-occurrence of marine mammal species with the activity; or (4) biological or behavioral context of exposure ( e.g., age, calving or feeding areas);

• Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors;

• How anticipated responses to stressors impact either: (1) long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks;

• Effects on marine mammal habitat ( e.g., marine mammal prey species, acoustic habitat, or other important physical components of marine mammal habitat); and,

• Mitigation and monitoring effectiveness.

PSO monitoring during construction will occur from vantage points along the current Highway 101 elevated causeway that allow monitors to observe any seals hauling out in the estuary as shown in the Marine Mammal Monitoring Plan. The primary observation locations shall be on the northern Highway 101 bridge and at the head of the existing estuary access path that will become the temporary parking platform. Monitors may also traverse along the Highway 101 causeway to obtain clearer views of approaching or hauled-out seals, such as from the southern Highway 101 bridge or North Parking Area. The observation area for the restoration area shall be accessed by foot and used to provide a vantage point of the construction area and Duckabush River estuary. This observation area includes all restoration areas within 300 meters of harbor seal haulout sites.

The USACE must submit a Marine Mammal Monitoring Plan to NMFS for approval at least 90 days in advance of construction. Marine mammal monitoring must be conducted in accordance with the conditions in this section and the approved Marine Mammal Monitoring Plan. Marine mammal monitoring during construction activities must be conducted by qualified, NMFS approved PSOs, in accordance with the following:

• PSOs must be independent of the activity contractor (for example, employed by a subcontractor) and have no other assigned tasks during monitoring periods.

• At least one PSO must have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization.

• Other PSOs may substitute other relevant experience, education (degree in biological science or related field), or training for prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization.

• PSOs must be approved by NMFS prior to beginning any activity subject to this rule.

PSOs should have the following additional qualifications:

• Ability to conduct field observations and collect data according to assigned protocols;

• Experience or training in the field identification of marine mammals, including the identification of behaviors;

• Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations;

• Writing skills sufficient to prepare a report of observations including but not limited to: (1) the number and species of marine mammals observed; (2) dates and times when in-water construction activities were conducted; (3) dates, times, and reason for implementation of mitigation (or why mitigation was not implemented when required); and (4) marine mammal behavior; and

• Ability to communicate orally, by radio or in person, with project personnel to provide real-time information on marine mammals observed in the area as necessary.

A census of marine mammals in the project area and the area surrounding the project will be conducted 30 minutes prior to the beginning of construction on monitoring days, and again 30 minutes after the completion of construction activities. Data collected during the pre- and post-construction daily censuses will include:

• Environmental conditions (weather condition, tidal conditions, visibility, cloud cover, air temperature and wind speed);

• Numbers of each marine mammal species spotted;

• Location of each species spotted, including distance from construction activity;

• Status (in water or hauled-out); and

• Behavior.

The USACE will conduct hourly counts of animals hauled out and in the water. Data collected will include:

• Numbers of each species;

• Location of species, whether hauled out or in the water; and distance from construction activities;

• Time;

• Tidal conditions;

• Time construction activities start and end;

• Primary construction activities occurring during past hour;

• Any noise or visual disturbance;

• Number of mom/pup pairs and neonates observed; and

• Notable behaviors, including foraging, grooming, resting, aggression, mating activity, and others.

PSOs will take notes including any of the following information to the extent it is feasible to record:

• Age-class;

• Sex;

• Unusual activity or signs of stress; and

• Any other information worth noting.

PSOs will record reaction observed in relation to construction activities including:

• Tally of each reaction;

• Time of reaction;

• Concurrent construction activity (including duration) and assumed cause (whether related to construction activities or not) and observer determination as to the source of disturbance, to the extent possible;

• Location of animal during initial reaction and distance from the noted disturbance;

• Direction of movement;

• Activity before and after disturbance;

• Status (in water or hauled out) before and after disturbance; and

• Coded reaction as shown in table 4.

The USACE must submit a draft monitoring report to NMFS within 90 calendar days of the completion of each construction year. A draft comprehensive 5-year summary report must also be submitted to NMFS within 90 days of the end of the effective period of the LOA. The reports must detail the monitoring protocol and summarize the data recorded during monitoring. Final annual reports and the final comprehensive report must be prepared and submitted within 30 days following resolution of any NMFS comments on the draft report. If no comments are received from NMFS within 30 days of receipt of the draft report, the report must be considered final. If comments are received, a final report addressing NMFS comments must be submitted within 30 days after receipt of comments. The annual and final marine mammal monitoring reports will include an overall description of work completed, a narrative regarding marine mammal sightings, and associated PSO data sheets. Specifically, the report must include:

• Dates and times (begin and end) of all marine mammal monitoring;

• Construction activities occurring during each daily observation period;

• PSO locations during marine mammal monitoring;

• Environmental conditions during monitoring periods (at beginning and end of PSO shift and whenever conditions change significantly), including Beaufort sea state and any other relevant weather conditions including cloud cover, fog, sun glare, and overall visibility to the horizon, and estimated observable distance;

• Upon observation of a marine mammal, the following information: (1) name of PSO who sighted the animal(s) and PSO location and activity at time of sighting; (2) time of sighting; (3) identification of the animal(s) ( e.g., genus/species, lowest possible taxonomic level, or unidentified); (4) distance and bearing of each marine mammal observed relative to the pile being driven for each sighting (if pile driving was occurring at time of sighting); (5) estimated number of animals (min/max/best estimate); (6) estimated number of animals by cohort ( e.g., adults, juveniles, neonates, group composition, etc. ); (7) animal's closest point of approach; and (8) description of any marine mammal behavioral observations ( e.g., observed behaviors such as feeding or traveling), including an assessment of behavioral responses thought to have resulted from the activity ( e.g., no response or changes in behavioral state such as ceasing feeding, changing direction, flushing, or breaching);

• Number of marine mammals detected within the harassment zones; and

• Detailed information about any implementation of any mitigation triggered ( e.g., shutdowns and delays), a description of specific actions that ensued, and resulting changes in behavior of the animal(s), if any.

The following requirement was unintentionally omitted from the proposed rule. It is included here as well as in the regulatory text. In the event that personnel involved in the construction activities discover an injured or dead marine mammal, the USACE must report the incident to the Office of Protected Resources (OPR) and the West Coast regional stranding network as soon as feasible. If the death or injury was clearly caused by the specified activity, the USACE must immediately cease the activities until NMFS OPR is able to review the circumstances of the incident and determine what, if any, additional measures are appropriate to ensure compliance with the terms of this IHA. The USACE must not resume their activities until notified by NMFS. The report must include the following information:

• Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);

• Species identification (if known) or description of the animal(s) involved;

• Condition of the animal(s) (including carcass condition if the animal is dead);

• Observed behaviors of the animal(s), if alive;

• If available, photographs or video footage of the animal(s); and

• General circumstances under which the animal was discovered.

The regulations governing the take of marine mammals incidental to the USACE's construction activities contain an adaptive management component which was described in detail in the proposed rule and is not repeated here. The reporting requirements associated with this final rule are designed to provide NMFS with monitoring data from completed projects to allow consideration of whether any changes are appropriate. The use of adaptive management allows NMFS to consider new information from different sources to determine (with input from the USACE regarding practicability) on an annual or biennial basis if mitigation or monitoring measures should be modified (including additions or deletions). Mitigation measures could be modified if new data suggests that such modifications would have a reasonable likelihood of reducing adverse effects to marine mammals and if the measures are practicable.

The following are some of the possible sources of applicable data to be considered through the adaptive management process: (1) results from monitoring reports, as required by MMPA authorizations; (2) results from general marine mammal and sound research; and (3) any information which reveals that marine mammals may have been taken in a manner, extent, or number not authorized by these regulations or LOAs issued pursuant to these regulations.

NMFS has defined negligible impact as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival ( i.e., population-level effects). An estimate of the number of takes alone is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be “taken” through harassment, NMFS considers other factors, such as the likely nature of any impacts or responses ( e.g., intensity, duration), the context of any impacts or responses ( e.g., critical reproductive time or location, foraging impacts affecting energetics), as well as effects on habitat, and the likely effectiveness of the mitigation. We also assess the number, intensity, and context of estimated takes by evaluating this information relative to population status. Consistent with NMFS' implementing regulations (54 FR 40338, September 29, 1989), the impacts from other past and ongoing anthropogenic activities are incorporated into this analysis via their impacts on the baseline ( e.g., as reflected in the regulatory status of the species, population size and growth rate where known, ongoing sources of human-caused mortality, or ambient noise levels).

The USACE has requested, and NMFS is authorizing take, by Level B harassment, of harbor seals from the Washington Inland Hood Canal stock. No injuries or mortalities are anticipated to occur as a result of the DERP project and none are authorized. Effects on individuals that are taken by Level B harassment, on the basis of reports in the literature, would likely be localized and limited to reactions such as alerts or movements away from the construction area, including flushing into the water. Most likely, individuals, if affected at all will simply move away from the visual or acoustic stimulus and be temporarily displaced from the areas.

Repeated exposures of individuals to relatively low levels of visual and sound disturbance outside of preferred habitat areas are unlikely to significantly disrupt critical behaviors or result in permanent abandonment of the haulout site. Even repeated Level B harassment of some small subset of the overall stock is unlikely to result in any significant realized decrease in viability for the affected individuals, and thus would not result in any adverse impact to the stock as a whole. Level B harassment will be reduced to the level of least practicable adverse impact through use of mitigation measures described herein. If visual disturbance and low-level sound produced by project activities is sufficiently disturbing, animals are likely to simply avoid the area while the activity is occurring.

No adverse effects to habitat or prey species are anticipated during or after construction has ended since almost the entirety of work will be land-based. There is other suitable habitat nearby where harbor seals could temporarily relocate. The restoration of the marsh habitat will have no adverse effect on marine mammal habitat, but possibly a long-term beneficial effect on habitat and harbor seals by improving ecological function of the slough, including increased prey availability, higher species diversity, larger fish, and improved habitat.

Harbor seals are not listed as threatened or endangered under the ESA and there are no known areas of biological importance in the project area. Furthermore, the population of the Hood Canal stock of harbor seals has been relatively stable over the past three decades (Pearson et al. 2024).

Taking into account the planned mitigation measures, effects to marine mammals are generally expected to be restricted to short-term changes in behavior or temporary displacement from haulout sites. There are other haulout areas for pinnipeds to temporarily relocate, and marine mammals are expected to return to the area shortly after activities cease.

In summary and as described above, the following factors primarily support our determination that the impacts resulting from this activity are not expected to adversely affect harbor seals (or any other species) through effects on annual rates of recruitment or survival:

• No serious injury, mortality or Level A harassment is anticipated or authorized;

• Effects of the activities will be limited to localized behavioral changes and temporary displacement;

• Nominal adverse impacts to pinniped habitat are anticipated while improved ecological processes in the estuary will result in positive effects to habitat;

• No biologically important areas have been identified in the project area; and

• Mitigation measures are anticipated to be effective in minimizing the number and severity of takes by Level B harassment, which are expected to be localized.

Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the required monitoring and mitigation measures, NMFS finds that the total marine mammal take from the planned activity will have a negligible impact on all affected marine mammal species or stocks.

As noted previously, only take of small numbers of marine mammals may be authorized under sections 101(a)(5)(A) and (D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the maximum number of individuals taken in any year to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. When the predicted maximum annual number of individuals to be taken is fewer than one-third of the species or stock abundance, the take is considered to be of small numbers. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities.

Table 3 in this notice demonstrates the maximum number of Level B harassment events per year. Our analysis shows that no more than 14.3 percent of harbor seals could be taken by Level B harassment. The numbers of animals authorized to be taken for this stock would be considered small relative to the relevant stock's abundances, even if each estimated taking occurred to a new individual—an extremely unlikely scenario.

Based on the analysis contained herein of the planned activity (including the required mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS finds that small numbers of marine mammals would be taken relative to the population size of the affected species or stocks.

There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks will not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.

Section 7(a)(2) of the ESA of 1973 (16 U.S.C. 1531 et seq. ) requires that each Federal agency ensure that any action it authorizes, funds, or carries out is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of designated critical habitat. To ensure ESA compliance for the issuance of proposed rules, NMFS consults internally whenever we propose to authorize take for endangered or threatened species.

No incidental take of ESA-listed species is authorized or expected to result from this activity. Therefore, NMFS has determined that formal consultation under section 7 of the ESA is not required for this action

To comply with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq. ) and NOAA Administrative Order (NAO) 216-6A, NMFS must evaluate the proposed action ( i.e., promulgation of regulations and subsequent issuance of a 5-year LOA) and alternatives with respect to potential impacts on the human environment.

This action is consistent with categories of activities identified in Categorical Exclusion B4 (Incidental Harassment Authorizations (IHAs)) with no anticipated serious injury or mortality) of the Companion Manual for NAO 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has determined that issuance of the final rule qualifies to be categorically excluded from further NEPA review.

The Office of Management and Budget (OMB) has determined that this final rule is significant under section 3(f) of Executive Order 12866. USACE's planned activities would support the construction of a new eight-span Highway 101 bridge across the Duckabush estuary. The existing bridge crossing will be removed. The activities would create economic benefits by improving the stream of commerce along Highway 101, which serves as a vital economic lifeline for Washington's Olympic Peninsula, generating hundreds of millions of dollars annually through robust tourism and critical freight and commercial transport. USACE initiated the request for an MMPA incidental take authorization, which suggests that it is relying on NMFS' authorization to proceed with its proposed action. While a MMPA incidental take authorization is not a pre-condition for conducting the proposed action (USACE is ultimately responsible for this decision), it would provide USACE with two key benefits: (1) a legal exemption from the MMPA's general prohibition on the take of marine mammals (assuming USACE complies with the terms and conditions of its authorization); and (2) regulatory certainty because USACE will be fully cognizant of NMFS' expectations in regard to the steps needed to be taken to address risks to marine mammals and how to minimize its legal exposure under the statute. USACE will also incur costs to comply with certain mitigation and monitoring requirements, as required by the MMPA. Despite the additional costs of such measures, the costs related to MMPA compliance during USACE's activities are small compared with expenditures on other aspects of construction and operations, and direct compliance costs of the regulatory requirements are unlikely to result in material impacts to the project.

In addition, cost savings may be generated by the reduced administrative effort required to obtain a LOA under the framework established by a rule compared to what would be required to obtain annual incidental harassment authorizations (IHA) under section 101(a)(5)(D). Absent the rule, to attain equivalent compliance with the MMPA, USACE would need to apply for IHAs annually over the duration of their activities. Although not monetized, NMFS' analysis indicates that the upfront work associated with the rule ( e.g., analyses, modeling, process for obtaining an LOA valid for 5 years) likely saves significant time and money for both NMFS and USACE.

In addition, some degree of benefits can be expected to accrue solely via ecological benefits to marine mammals and other wildlife as a result of this rulemaking. The published literature is clear that healthy populations of marine mammals and other co-existing species benefit regional economies and provide social welfare benefits to people. However, the literature does not provide a basis for quantitatively valuing the cost of anticipated incremental changes in environmental disturbance and marine mammal harassment associated with the rule.

This rule is considered an Executive Order 14192 deregulatory action. The promulgation of incidental take regulations under MMPA section 101(a)(5)(A) of the MMPA allows an otherwise prohibited action ( i.e., the taking of marine mammals), which increases flexibility and reduces burden.

Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), the Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration at the proposed rule stage that this rule would not have a significant economic impact on a substantial number of small entities. The USACE is the only entity that will be subject to the requirements in these regulations. The USACE is not a small governmental jurisdiction, small organization, or small business as defined by the RFA. No comments were received that would affect this certification. Therefore, a regulatory flexibility analysis is not required and none has been prepared.

This final rule does not contain a collection-of-information requirement subject to the provisions of the Paperwork Reduction Act (PRA) because the applicant is a Federal agency.

For the reasons set forth in the preamble, NMFS amends 50 CFR part 217 as follows: